Lyrics Server down! Recent copyright debate on the IASPM mailing list

Lyrics Server down!
Recent copyright debate on the
IASPM mailing list
since 25^th January 1999 after the International Lyrics Server
in Switzerland was shut down by police

Initial contribution on Monday, 25^th January 1999 by
Steve Gilbert: The International Lyrics Server, operating out of Switzerland, has been shut down by the NMPA. Those wishing to check further and add their names to a petition can click on http://www.lyrics.ch

Reebee Garofalo: Thanks to Steve Gilbert for the heads up on the International Lyrics Server. This is a great service, one that should be strongly supported, and one that doesn't hurt the publishers at all. This action by NMPA underscores precisely what is wrong with copyright and the publishing business. The recent US copyright revision, passed unanimously and signed by Clinton, extends the term of corporate copyright to 95 years. The reason: Mickey Mouse would have entered the public domain in 2003. If we don't get more organized about this stuff, there won't be any public domain and there won't be any use that's considered fair.

Anahid Kassabian: Good Morning Silicon Valley had a link to this story on the situation from _Wired_. Here's the URL: http://www.wired.com/news/print_version/culture/story/17499.html

Geoffrey P. Hull: At risk of being labeled a "capitalist sympathizer," I think we should recall that songwriters (not just fat-cat corporations) participate in the proceeds of any royalties earned from lyric reprints. The music publishers do indeed license lyric reprint rights to magazines so those magazines, the publishers and the songwriters would, in fact, be hurt by a web site which gives away the basis of their livelihoods.

Another point to consider is that the magazines create a permanent record of the lyrics, as opposed to the highly impermanent cyber record of the web site. As researchers, we need resources that will be available years from now. Can we, as researchers, also assume that web postings by unauthorized users are accurate? At best that would be risky business.

It needs to be mentioned that all copyrights were extended, not just those of corporations. In fact, in that extension the authors or their heirs were given a second chance to recapture their rights (if not exercised under the prior law). The extension of an additional twenty years under U.S. law simply matches what had already been done by the countries in the European Union.

Finally, the U.S. Constitution would prohibit a copyright law which purported to grant copyright or patent protection for more than "limited times." I'd say "life of the author plus 70 years" is about the limit. So, there will still be a public domain.

Steve Gilbert: Regarding Geoffrey Hull's comments in defense of royalties, I'm not unsympathetic. As a textbook author, I've routinely seen college bookstores make big profits on used books with the publisher and author getting nothing--which is why high-volume textbooks (not mine, not thus far) get new editions every couple of years. But scholars typically don't make much money from their researches--usually not immediately. And students certainly don't. Not all CDs include lyrics, which leaves one in a bind, especially when their delivery doesn't always render them intelligible.

I have stock in Disney, so I'm not heartbroken that they want to keep their cash flow going with copyright extension, but it's ironic that their classic material was mostly based on public-domain story lines. Frances Gershwin Godowsky, who just died, was appalled that the Gershwin estate trademarked the Gershwin name, along with titles that were still unique--notably "Rhapsody in Blue" and "Porgy and Bess."

There's also the larger question of just whose ox is gored by the availability of lyrics on the web, or by the availability of live or "bootleg" CDs. I doubt, for example, that Eddie Vedder was the one who objected to CDs like "Flashpoint" (the one with Eddie and the Doors). Live performances supplement the studio ones in valuable ways. And having lyrics readily available for consultation enhances the scholarly work we do. Not having them makes our work less accurate.

Reebee Garofalo: Nobody is saying that for-profit magazines shouldn't be charged a fee for lyric reprints. That has nothing to do with a non-profit website. But it does raise the larger question of whether publishing a lyric hurts sales or actually offers a song free promotion. I can't imagine that my publishing a lyric of a Springsteen song in a scholarly article would discourage anyone from buying the record or sheet music. If anything the opposite would happen. Artist and publisher would benefit. Besides which copyright was originally intended to balance the reward for artistic development with providing public access. That balance is becoming more and more lopsided.

(Regarding extension of all copyrights were extended, not just those of corporations:) IIt's true that individual copyright was also extended, but Disney led the charge and Mickey was the reason. It is also true that the USA was simply following the European Union, but that just means that the EU is privatizing culture too.

(Regarding "life of the author plus 70 years" is about the limit:) Irving Berlin lived to be 100. Why should his estate be granted copyright for another 70 years? They didn't create anything. Why shouldn't the public benefit instead?

Paul D.("DocRock") Fischer: Just to echo what Reebee said about academic use having little impact on the value of a copyright, here's a current example of overzealous copyright protection that also gives me a pain. Just yesterday Warner Publications refused my request for "fair use" status to use four lines from a Steve Earle song as an epigraph to a piece for an academic journal. I think my mistake was asking them in the first place.

The essay in question is a 1600 word review essay of "Mermaid Avenue" the Billy Bragg/Wilco CD putting music to Woody Guthrie lyrics written in the 40s and 50s, scheduled to appear in _Left History_. Imagine their huge circulation. For obvious reasons, the lyrics I wanted to use were:

Come back Woody Guthrie
Come back to us now
Tear your eyes from paradise
And rise again somehow

I earn no money for the publication, circulation is small, it might bring Earle's work to a new audience (positive impact on copyright value), and "Mermaid Avenue" is even on a sister label of Earle's. My request was rejected citing "very rigid contractual restrictions." They didn't even try to hold me up for a royalty payment, they just issued a blanket "no." What do you think I should do next?

Steve Gilbert: The latest is that the search engine is up, but that no lyrics can be displayed for the time being. They're taking down e-addresses if you want to be apprised firsthand. Click on http://www.lyrics.ch. The issue from a practical standpoint, as I see it, is not the principle that artists should be compensated for their work (something with which few people would quarrel), but that the media merchants are insisting on their piece of the pie along the way. They don't care whether a citation will encourage people to purchase their product; rather, their concern is with the here and now.

Geoffrey P. Hull: (Referring to Reebee Garofaloo's argument "That balance is becoming more and more lopsided"): Ever been in a band? Ever have anybody say, "Hey, kid, come play at my club next week. I can't pay you anything, but it'll be great exposure!" Well, you can only live on promotion and exposure for so long. It don't pay the rent. The non-profits can eat your profitability as quickly as anybody else.

Copyright law does attempt to balance rewarding artistic development with providing public access. The reason to reward artistic development is "to promote the progress of science and and the useful arts." So, by allowing authors to make a livelihood through their creative efforts we encourage the creation of more works and thereby all benefit. Public access is achieved through expiration of copyright protection when the work becomes Public Domain, and fair use. A duration of Life of the author plus 70 years works for me, Life plus 50 works better for Reebee. OK

(Response to Reebee Garafaloo's point current developments in copyright law tend to privatize culture): "Privatizing culture" sounds like charged words to me. Consider the fact that many African and Latin nations are currently trying to figure out how to use the concept of copyright and like laws to retain their cultures and keep them out of the public domain. Their arguement is that they want to keep their culture so they can keep western nations from exporting and exploiting it without returning a dime to the source country. Also the phrase makes it sound like the culture, or rather the works in question, were once part of some public domain, but now they are being taken back into the private sphere for profit of somebody. Yes, the mouse in question is part of our culture (for what that's worth) but that does not mean that because he became very popular we can now take from Disney. Disney should not be able to own him forever either.

(Response to Reebee Garafaloo's question: "Why shouldn't the public benefit instead?":) The public benefitted. Listen to all of those wonderful songs and think of the pleasure they have provided for so many people. Would Berlin have created those songs and his publishers promoted those songs for us to hear if there was no reward? The public will benefit more when those songs are available "free" when they enter the public domain--not that they would be very expensive now to record with a compulsory mechanical license.

btw - Try the NMPS's web site for their side of this story: http://www.nmpa.org

Steve Gilbert: We're not talking about playing for free or writing for free. We're not even talking about writers or performers, but processors and packers who are in a position to grant or deny permission at will and of whose proceeds the artists themselves typically get relatively little.

If you're writing something that takes a stand that an artist or writer, you may have to alter what you say before permission is granted, so long as you're in the vulnerable position of needing to quote from that artist's work. Even if you're lucky with the powers that be, as I basically was with the Gershwin estate, there are things that happen that would offend anyone sensitized to the First Amendment. I had to adhere to certain stipulations, including one that I omit mention of a particular book in my preface.

The example of Irving Berlin was brought up earlier because of his longevity; it's also interesting another reason. Berlin published his own music and was very tight with permissions. None of his songs were ever in anthologies (to this day, I've never seen "White Christmas" in a holiday song book), and the Berlin chapter of Alec Wilder's _American Popular Song_, first published 1972, contains zero musical examples and a footnote explaining that permission to reproduce was denied outright.

After Berlin's death things changed. Allen Forte's book on the same repertory, published in '95, does contain Berlin examples, with rights obtained for a price. And "Blue Skies" is now being used in an antihistimine commercial (Claritin). Regardless of whether "Irvy" would have approved, the fact remains that decisions as to what to do with the music now rest with people other than the one who created it. As the agency gets further removed from the source, it becomes less easy to assume that it acts on the basis of anything so noble as artistic integrity.

As I wrote in a letter shown on _60 Minutes_ in late '78 (sic), piracy of ill-gotten gains can scarcely be considered a crime. (That sounds awfully leftist coming from a political conservative, but pigeonholes are for pigeons.)

Neal Ullestad: Wow! Geoff, You certainly have some interesting ideas.Can't say that I agree with any of them. ...I personally do beleive that people were writing and creating long before copyright laws were passed....don't know though, I could be wrong.....

I do not believe that copyright laws were passed initially to protect the artist....What I'd be interested to see is a comparison of just how much money does get back to a writer or musician.....and what the percentage of that goes to more than a relative handful of practicing musicians and artists.

The star system pretty much limits the number of meaningful recipients. Is there such a comparison? I have seen the horrifying documentation of how blues and early r & b artists were treated, most rock & rollers and black jazz musicians have faired no better and I've read the horror stories regarding many modern musicians getting stuck w/ contracts that are NOT in their interest....Talk to Springsteen lately? Ever hear of the golden rule? "He who has the gold makes the rules!" Not much balance in copyright laws as far as I've seen, because the laws are written by "guess who?".....I'm just awash in royalties from all the articles I've had published over the years.

> "Privatizing culture" sounds like charged words to me.

Sorry Geoff, We live in a politically charged culture....no escaping it. Its also economically charged, more and more so every day as the rich get richer and the poor get poorer. If someone speaking the truth makes you nervous, please consider how "charged" your own comments are in return.

> Would Berlin have created those songs......for us to hear if there was no reward?

I happen to think that Irving Berlin liked writing songs without copyright "protection" as we now "enjoy" it, and that he was lucky his talent (and lucky to find a company to promote him) came to the attention of the public....There are many people who write songs every bit as "classic" but never make contact with a promoter who has the right contacts. Some artists work because they love their art and are benefitted in their lifetimes. Most artists struggle to survive as they create their body of work, and then the "lucky" holder of the object or copyright laugh all the way to the bank. The other side of the story? When was the last time anyone got published in _Billboard_ or the _Wall Street Journal_ with our side of the story?

Actually, I don't really get your point.....am I to believe that I as a writer, and the public as a whole will benefit more by having copyrights extended for 70 years after the creator's death.....In what ways specifically?

Neal Ullestad: This discussion is starting to sound like we're talking about the big HMOs....anyone up for defending their right to countermand doctor's orders?

Or haven't we been reading the daily newspaper lately? Steve....Your quote on: "....piracy of ill-gotten gains can scarcely be considered a crime....." is fabulous, I'll start citing you on my e-mail address I think..... :-)

Just what kind of political conservative are you anyway?....sounds awfully genuine to me..... You might even be a McCain supporter, huh? :-) Now there's a conservative that's hard to pigeonhole.....And he's from Arizona too, home of other conservative iconoclasts such as Goldwater.....there's another one that's hard to pigeonhole. :-)

Thanks for your thoughtful comments Steve, I may be sounding flip in this posting, but I see some very important issues emerging from Reebee's and your ideas, and I'd certainly like to hear more.....

Anahid Kassabian: In answer to Neil's question about the history of copyright laws and who benefits, it might be useful for someone who's worked on that history to post a little summary. If I remember correctly from "history of the book" scholarship in literature, copyright has from the outset, at least as it was enacted in England and subsequently in America, protected not artists/authors but publishers ...

Jonathon S. Epstein: From my conversations with friends in the industry, the answer here is "not much," or at least "not as much as you'd think." One example that I can provide with authority is that of the British band Marillion, who I have been involved with on both a personal and professional level for some time. At one point (circa the mid 80's) they were one of Englands most popular bands, and have sold right around 7 million albums. their best selling album was _Misplaced Childhood_ (1985), which debuted at #1 in the UK (which placed them firmly within the "star system" particularly their vocalist/lyricist Fish now solo), and for which they each recieve 10p (around 15 cents) per copy sold. They have sold right at 2 million copies of that album which comes out to about 200,000 pounds Sterling per member. Sounds like a lot of loot until you consider that this sales figure has taken 15 years to reach. hence, assuming that sales were about the same each year (which obviously they were not) that comes out to about 14,000 pounds per year. When you add in the other albums they each have averaged around 40k per year, which while a tidy sum, certainly doesn't qualify as "rich."

Geoffrey P. Hull: True, the Statute of Anne (the first English "copyright" law in 1710) was passed for the protection of the Stationers (a.k.a., publishers). An interesting account is in Benjamin Kaplan's small but fine work *An Unhurried View of Copyright*. Kaplan quotes Lord Camden as saying "They <the Stationers> came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion , and induce Parliament to grant them a statutory security." Later Kaplan notes, "I think it nearer the truth to say that publishers saw the tactical advantage of putting forward authors' interests together with their own, and this tactic produced some effect on the tone of the statute."

However, by the time the empowering language was put in the U.S. Constitution, art.1, Sec. 8. Clause 8, the founders had a bit of a different view. There is very little legislative history about how or why the copyright and patent clauses were put in the Constitution except for a remark by Madison in the Federalist No. 43: "The utility of this power will scarrcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have antitipated the decision of this point, by laws passed at the instance of Congress."

So, our copyright laws, the first one of which was passed by the first Congress in 1790 by mostly the same people who worked on the Constitution, were in fact aimed at author protection. It is of course true that publishers also benefit. The same law that protects the author's work until it is published protects the work after it is published so the publisher can be rewarded for the distribution efforts and the author can be further rewearded through royalties (if that is their deal with the publisher) for the creation of the work. This benefits all of us because it encourages the creation of works by authors and the distribution of works to the public by publishers.

The very same laws that give authors rights also end up giving publishers rights. Just as the very same laws that give me property rights in the miniscule plot of land on which sits my home also give the huge developers and corporate landowners rights in their property. That does not mean, however that because some large rights owners own lots of land that the laws are bad...unless of course one wants to make a Marxist critique of capitalism and property ownership in general.

Neal Ullestad: I'd certainly like to consider more recent "revisionist" marxist/materialist critiques of capitalist social relations if you don't mind, especially if we make the arguement that INDIVIDUAL "property rights" are not the same as CORPORATE ones....Your citations of history can't obscure the fact that the original founders of the nation were Large landowners primarily and that they didn't consider landless people worthy to make the same decisions they did....slaves were only "partially" human as far as counting and women weren't much better, without the vote, etc. The laws ARE quite BAD if they protect primarily the large corporations and leave little protection for the artist/creator and the public.

One can make a very solid arguement in FAVOR of INDIVIDUAL property rights and not extend the same "rights" to soulless corporations. In fact the Trust-Busting at the end of the last century was based on the fact that Corporations DON'T have an "inherent right" even to exist, but must serve the public good, and are only allowed to exist as long as they don't threaten that public good. Such an arguement isn't Marxist, or even Liberal.....Teddy Roosevelt lead that charge......so let's not throw in any red herrings here.....The issue isn't "marxism vs. capitalism" but individual rights vs. corporate "rights". Excuse me for thinking this was a democracy and not a corporatist state.

> publishers saw the tactical advangage of putting forward authors'interests together with their own, and this tactic produced some effect on the tone of the statute."

And do we have a measure of "some effect"? Just how "beneficial" were these effects for the artists and musicians involved?

> The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.

Your own quote Geoff, doesn't offer a peep about "rights" of publishers or the longterm holders of copyright.....And you still haven't answered my questions on how, Specificallly, artists and the public are protected/benefited by ensuring the massive control by corporate copyright holders and publishers......How are the authors benefitted by extending the copyright 50 years after their death?

> This benefits all of us because it encourages the creation of works by authors and the distribution of works to the public by publishers.

You can keep repeating the same phrase over and over but that doesn't make it true. Is it just a "plug-in" on your keyboard? I assume you're ignoring my comments because I'm quite animated these two days.....but ignoring them doesn't make them go away either. Yes, I am animated, but I'm not calling anyone names.....These issues are very near and dear to my heart so I am passionate about them.

A little local example, totally unrelated to music, authorship, etc. An exercise in weighing individual rights against corporate "rights": Tucson's political scene is totally dominated by huge development corporations (many from California), Del Webb, Estes, etc. Large subdivisions are governed by zoning, but since 1973 there has been only one County Supervisor vote against re-zoning in favor of a corporation's "right" to build more homes than is currently allowed, that is to maximize the amount of profit one can drain from an area. "Currently allowed", that is to make MORE, profit, not necessarily just a fair return on their investment (whatever that is). Meanwhile, wildcat developers split lots just outside the city limits, build their subdivisions and then petition to have infrastructure services extended to them.....In other words, the taxpayers of the city and county pay for them to make a profit, a direct subsidy if you will, they don't pay a cent to hook up to sewers, etc. The costs of connecting new homes to the systems are paid by people like me (and you I assume).

That's the issue of individual versus corporate property rights....and I have no problem with individual property rights......especially as protected by the Constitution. But individual rights in just about every area of concern have been whittled down to mere shadows of what they were, and corporate "rights" are defended at the drop of a hat. So if you want to discuss why corporations deserve special treatment I'm open to that....but don't blame marxism for the unfairness of global capitalism, it doesn't wash...

Ted Friedman: Sure, I'll make it ("a Marxist critique of capitalism and property ownership in general", quoting Geoff Hull). In fact, what I find so interesting about the ubiquity of bootlegging - home taping, casual software copying, cable "theft," now MPG-3 distribution - is the way it suggests a hole in much-touted consensus that history is over, and multinational capitalism is everybody's best solution. Most consumers of culture reasonably conclude that intellectual property is theft - a system designed for the benefit of corporations, not creators; for the Left, that should open up an exciting opportunity to promote a more complete critique of capital.

Shihlun: a good articile about the history of copyright,see Ronald Bettig's book "Copyrighting Culture: The Political Economy of Intellectual Properity" ,especially chapter 2 "The Critical Perspectives on the history and philosophy of copyright".

Geoffrey P. Hull: (quoting Ted Friedman "Sure, I'll make it.") OK. If you wish to take that perspective, then what do you propose replace the system of intellectual property? What ends do you wish the system to serve? To encourage the creation of works? To encourage the distribution of those works to a wider public?

I would be most foolish if I claimed that history is over. But I don't think the actions which you list (bootlegging - home taping, casual software copying, cable "theft," now MPG-3 distribution) suggest anything at all about global economic or social history unless it is that the means of "manufacturing" copies have diffused down to the individual level. In that sort of post-industrial environment. Some would say we are democraticizing (is that a word?) the system by making it possible for more people to speak, to create and to distribute their works. The problem is that those folks also feel free to copy and distribute the works of others without their permission.

I'm not sure that most consumers of culture, reasonably or unreasonably, conclude anything at all about intellectual property since the rights are intangible. Can you refer me to any research which supports your statement? for the Left,

> that should open up an exciting opportunity to promote a more complete critique of capital.

That's fine. But neither the existence of a capitalistic system nor the existence of a thorough critique thereof vouches for the veracity of either.

Geoffrey P. Hull: (referring to Neal Ullestad) The things which you say about the founders are largely true. We do a little better these days but are far from perfect. There are still lots of representatives, senators, presidents, prime ministers, kings queens and other leaders, not to mention a WHOLE lot of ordinary folks whose views on the rights and privileges of other people leave a lot to be desired. The laws of copyright are the same whether the owner of the rights is the original author or a corporation.

It is certainly true that corporations are creatures of law...artificial creatures at that. As citizens in a democracy we can change the rules by which corporations exist or ooperate if we can find enought like-minded people tto vote with us. (Please note, I am not illiterate or a complete non-typist...but there is something about the interface between y computer and the main-frame...no doubt attributable to Bill Gates...that makes error correction very difficult. Please excuse .) that "publishers saw the tactical advangage of putting forward authors' interests together with their own, and this tactic produced some effect on the tone of the statute."

Sure. The effect is that the copyright law speaks of the rights of authors, not the rights of corporations (unless you want to argue the merits of work made for hire, which is beyond the scope of this current discussion)..

"Your quote doesn't offer a peep about "rights" of publishers or the longterm holders of copyright."

I know it doesn't say anything about the rights of publishers. The system was set up to allow the authors to sell or license their rights to others who were in a better position to promote the works to the public. The fact is that most authors would rather spend their time creating than publishing. The only reason that there are copyright holders, aside from work made for hire which is not a significant factor in music, is that the authors sell the corporations their rights. The idea of extending the term of protection beyond the life of the author is so that the author's surviving heirs may benefit.

The current law allows authors to "recapture" their rights from these corporations after a period of 35 - 40 years. That certainly benefits the authors because once the value of a work is known, the author can demand a higher price for it from some other publisher or begin to exploit the work themselves.

"You can keep repeating the same phrase over and over but that doesn't make it true."

Of course not. But I look around and see thousands and thousands of books, movies, recordings, etc. being cast at us every day. There are thousands more waiting in the wings from authors who have not yet caught the public eye or the corporate producer's eye. Certainly the publishers (word used broadly) are motivated by profits. They hope we will buy what they offer.

The vast majority of the authors are also motivated by the possibility of reward. We have lots of cultural artifacts from which to choose. That is why it appears to me that there is some truth there. Is it just a "plug-in" on your keyboard? I assume you're ignoring my

"comments because I'm quite animated these two days.....but ignoring them doesn't make them go away either. Yes, I am animated, but I'm not calling anyone names.....These issues are very near and dear to my heart so I am passionate about them."

I must confess that I did not immediately respond to you because you simply raised more issues than I cared to try to deal with on Friday morning when I read your message. I don't feel like I am being called names. A favorite saying of mine is that "Reasonable people can differ." I suppose we could amend that by saying that "Reasonable passionate and animated people can differ." OK?

(Referring to Neal's local example:) Similar things happen around here. They happen with private "fat cat" developers and corporate "fat cat" developers. I'm not sure that their corporate nature is so much to blame for their ways as the fact that they are "fat cat" developers.

"....but don't blame marxism for the unfairness of global capitalism"

I don't particularly think that corporations deserve special treatment, or mistreatment for that matter. I'm not blaming marxism for anything. It would be difficult to deny that the economic system in a country influences nearly everything else. But neither is it fair to blame the existence of corporations for the "unfairness of global capitalism." Greed predates either system.

Roger Johnson: Very interesting discussion on copyright. One of the deeper problems is the myth of autonomy with respect to cultural "products." The real creators of the styles, codes, musical/verbal language itself, etc. are embedded within the cultures themselves (and they never get their's). With "literature," "classical music," etc. the balance between individual vs. cultural contribution is perhaps clearer (easier to define what is beingcopyrighted). The problem with the popular arts, and their genius as well, is that the line is much less clear. The problem of samples has raised this issue, but it's been around for a long time. What is the copyrighted text? What does it mean to "own" a musical gesture? How is it distinguished from other parts of the musical/verbal text?

As we move further and further into the world of digital multimedia this problem is going to get more and more problematic. The thinking of John Perry Barlow and Esther Dyson (2 of the ones I've found interesting) on just this point are very important. And, of course, the fat cats in the entertainment industry are scared shxxless. How do we deal with the whole concept of intellectual property in the years ahead?

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