And she's buying a stairway.... to a lawsuit?
March 3, 2010 3:25 AM Subscribe
Posting snippets of copyrighted songs online. Legality and stickiness thereof?
Asking for a friend but I'm also selfishly curious also:
(1) Non-commercial. Maybe there's AdSense on the blog (not sure), but no sales of anything.
(2) US, UK or Canadian input welcome, or anywhere else I suppose. Can be hosted anywhere, after all.
(3) I am curious: what if she also encouraged the download of these little snippets to use as ringtones.
I'm familiar enough with fair use for review purposes w/r/t text and images, but this download-and-use-it-ability makes it feel odd to me, and so I come to AskMe for opinions on how dodgy this might be.
(I know YANML. I want to know whether this is risky enough to advise retaining a real one, or if she's worrying needlessly.)
Asking for a friend but I'm also selfishly curious also:
I'd like to post snippets (5-20 seconds) of popular music on a new blog, to go along with a discussion of each. Is this legal to do without permission/royalties/etc.?To add to that on my own:
The snippets will often be "stings" or very recognizable bits, which as a side effect would make them pretty useful for ring tones, I think. This is not the goal of the blog, but it seems an obvious thing that will happen, and I can't stop them from being used that way, can I? Should I? Is it my responsibility/duty/etc?
(1) Non-commercial. Maybe there's AdSense on the blog (not sure), but no sales of anything.
(2) US, UK or Canadian input welcome, or anywhere else I suppose. Can be hosted anywhere, after all.
(3) I am curious: what if she also encouraged the download of these little snippets to use as ringtones.
I'm familiar enough with fair use for review purposes w/r/t text and images, but this download-and-use-it-ability makes it feel odd to me, and so I come to AskMe for opinions on how dodgy this might be.
(I know YANML. I want to know whether this is risky enough to advise retaining a real one, or if she's worrying needlessly.)
Response by poster: No, the intention is most definitely not anything to do with ringtones. I must sound shifty when typing, but I promise that is true.
It's a pop-music theory blog discussing song structures and other things I know nothing about, being not much of a music person myself, and the song clips would be used as... well, as clips to illustrate whatever's being discussed. But as a side effect, the blog would end up having hundreds of such things, inevitably and eventually, making it effectively the same as a site that's actually serving up MP3s for ringtone use. (Again: no, she doesn't care one whit about ringtones, I promise.)
So the question is whether this should be a concern. If so, there's the extra possible work of embedding them in some hard-to-download format, but does that responsibility really fall on her? Preventing possible unintended use?
I added the "but hell, what if it was the purpose" as a B-question myself, because it came to my own mind that the only real difference would be intent, wouldn't it? The question is practical, my add on is theoretical. Sorry if that was confusing.
What is your basis for "a few song snippets is... okay... but [many] won't fly?"
posted by rokusan at 5:23 AM on March 3, 2010
It's a pop-music theory blog discussing song structures and other things I know nothing about, being not much of a music person myself, and the song clips would be used as... well, as clips to illustrate whatever's being discussed. But as a side effect, the blog would end up having hundreds of such things, inevitably and eventually, making it effectively the same as a site that's actually serving up MP3s for ringtone use. (Again: no, she doesn't care one whit about ringtones, I promise.)
So the question is whether this should be a concern. If so, there's the extra possible work of embedding them in some hard-to-download format, but does that responsibility really fall on her? Preventing possible unintended use?
I added the "but hell, what if it was the purpose" as a B-question myself, because it came to my own mind that the only real difference would be intent, wouldn't it? The question is practical, my add on is theoretical. Sorry if that was confusing.
What is your basis for "a few song snippets is... okay... but [many] won't fly?"
posted by rokusan at 5:23 AM on March 3, 2010
Oh, okay, I think your phrased your post to make the whole thing sound sneakier than it is (or else I misread it...it's still a bit early).
In any event, I'm far from a lawyer, but technically I think the posting of any copyrighted material on-line is illegal, at least in the three countries you mentioned. What I meant is that a blog with a few snippets here and here would probably be overlooked by anyone on-line that was on the hunt for troublemakers.
Having said that, I know that a prof of mine once put up some music on his website and stated that he was probably allowed to under some provision related to educational purposes...even so, he hid the music so only those of us in his class would know where to look.
Probably someone else can fill in the details here.
posted by hiteleven at 5:30 AM on March 3, 2010
In any event, I'm far from a lawyer, but technically I think the posting of any copyrighted material on-line is illegal, at least in the three countries you mentioned. What I meant is that a blog with a few snippets here and here would probably be overlooked by anyone on-line that was on the hunt for troublemakers.
Having said that, I know that a prof of mine once put up some music on his website and stated that he was probably allowed to under some provision related to educational purposes...even so, he hid the music so only those of us in his class would know where to look.
Probably someone else can fill in the details here.
posted by hiteleven at 5:30 AM on March 3, 2010
IANAL either, but in my experience, for clips that short, you'd also be subject to a takedown notice, rather than a full blown lawsuit, and your host would most likely comply regardless of legality.
posted by CharlesV42 at 5:33 AM on March 3, 2010
posted by CharlesV42 at 5:33 AM on March 3, 2010
I think the posting of any copyrighted material on-line is illegal
Um, no. Fair use.
posted by Rhomboid at 5:33 AM on March 3, 2010
Um, no. Fair use.
posted by Rhomboid at 5:33 AM on March 3, 2010
hiteleven: "I think the posting of any copyrighted material on-line is illegal, at least in the three countries you mentioned."
Hopefully someone who is a lawyer will be able to come in and explain Fair Use far better than I have a chance of doing. I also think mentioning ringtones overcomplicates the issue
posted by turkeyphant at 5:34 AM on March 3, 2010
Hopefully someone who is a lawyer will be able to come in and explain Fair Use far better than I have a chance of doing. I also think mentioning ringtones overcomplicates the issue
posted by turkeyphant at 5:34 AM on March 3, 2010
Um, no. Fair use.
Right, illegal was too strong a term. But as a non-lawyer I wouldn't advise anyone to play chicken with the RIAA on this.
posted by hiteleven at 5:43 AM on March 3, 2010
Right, illegal was too strong a term. But as a non-lawyer I wouldn't advise anyone to play chicken with the RIAA on this.
posted by hiteleven at 5:43 AM on March 3, 2010
If you listen to the RIAA, my walking up the a piano and pressing the middle C key is a flagrant violation of someone's copyright and they believe fair use is the moral equivalent of you stabbing someone in the head with an ice pick, so your friend is likely, at some point, to receive a takedown notice at some point.
posted by Kid Charlemagne at 5:46 AM on March 3, 2010 [1 favorite]
posted by Kid Charlemagne at 5:46 AM on March 3, 2010 [1 favorite]
Response by poster: Sorry, if the mods want to edit the question to remove my meandering add-on question and these comments, or kill the question completely (I'll repost later without the sidetracking), it might help keep the real question in sight.
It's MP3 clips used to illustrate of written reviews. The side effect that someone could download them for some other use (and 'ring tones' is an obvious application for 5-20s clips) is just what raised the question.
posted by rokusan at 5:46 AM on March 3, 2010
It's MP3 clips used to illustrate of written reviews. The side effect that someone could download them for some other use (and 'ring tones' is an obvious application for 5-20s clips) is just what raised the question.
posted by rokusan at 5:46 AM on March 3, 2010
Sorry as well to focus on the ringtone issue and drop a bit of male answer syndrome. I'll be quiet now and let this thread get back on track.
posted by hiteleven at 5:48 AM on March 3, 2010
posted by hiteleven at 5:48 AM on March 3, 2010
Best answer: I'm not a lawyer but I do have both a personal and a professional interest in copyright issues. The following is based on my understanding of US copyright law.
I'm familiar enough with fair use for review purposes w/r/t text and images
Then you're probably aware that there's no simple, easy-to-apply test to determine whether a given use falls under "fair use" or not. The only way to determine with certainty whether something is fair use or not is for the copyright holder to sue and for a judge to decide whether it's fair use or not. This is as true for sound recordings as it is for text or images.
That said, there are four factors judges apply in determining whether a given use is fair or not. The fact that the snippets are posted for the purpose of critical commentary, and that the whole song is not posted, would weigh in your friend's favor. That they could be used as ringtones could weigh against her in that it could harm the potential commercial market for ringtones; and as for your bonus question, if she encouraged it, I would think that would definitely be worse. I don't think it's merely a question of intent: without said encouragement, a given post will not turn up in a Google search for "[song name] ringtones;" with it, it would. If she not only did not encourage use as ringtones, but also made the snippets difficult to download, that might weigh in her favor, as it's less likely to harm the potential commercial market.
Could the copyright holder sue? Sure, in an "anyone can sue anyone for anything" way. Would they? I'd think a cease & desist letter would be the first likely step, and a reasonable copyright holder would not follow through with a lawsuit if the C&D were complied with, but we've seen that the RIAA has been rather, um, zealous in going after infringers in the past. If they did sue (and it wasn't settled) how likely would they be to win? That's a question for her copyright attorney.
posted by DevilsAdvocate at 5:57 AM on March 3, 2010
I'm familiar enough with fair use for review purposes w/r/t text and images
Then you're probably aware that there's no simple, easy-to-apply test to determine whether a given use falls under "fair use" or not. The only way to determine with certainty whether something is fair use or not is for the copyright holder to sue and for a judge to decide whether it's fair use or not. This is as true for sound recordings as it is for text or images.
That said, there are four factors judges apply in determining whether a given use is fair or not. The fact that the snippets are posted for the purpose of critical commentary, and that the whole song is not posted, would weigh in your friend's favor. That they could be used as ringtones could weigh against her in that it could harm the potential commercial market for ringtones; and as for your bonus question, if she encouraged it, I would think that would definitely be worse. I don't think it's merely a question of intent: without said encouragement, a given post will not turn up in a Google search for "[song name] ringtones;" with it, it would. If she not only did not encourage use as ringtones, but also made the snippets difficult to download, that might weigh in her favor, as it's less likely to harm the potential commercial market.
Could the copyright holder sue? Sure, in an "anyone can sue anyone for anything" way. Would they? I'd think a cease & desist letter would be the first likely step, and a reasonable copyright holder would not follow through with a lawsuit if the C&D were complied with, but we've seen that the RIAA has been rather, um, zealous in going after infringers in the past. If they did sue (and it wasn't settled) how likely would they be to win? That's a question for her copyright attorney.
posted by DevilsAdvocate at 5:57 AM on March 3, 2010
Fair use allows a portion of a work to be replicated for the purpose of discussion and study, as long as the portion does not compromise the whole (US Copyright Law, other countries may not apply). Trouble with this is "portion" is undefined, and that's where copyright holders try to pull legal bullshit.
Takedown is not a big deal. Is she willing to put up with this? Lawsuits from the RIAA are a whole nother enchilada.
posted by Brittanie at 7:20 AM on March 3, 2010
Takedown is not a big deal. Is she willing to put up with this? Lawsuits from the RIAA are a whole nother enchilada.
posted by Brittanie at 7:20 AM on March 3, 2010
Best answer: +1 DevilsAdvocate.
This is civil law, not criminal law. "Is this illegal" isn't exactly the question. "Will they take action against me" - ranging from a takedown notice or a cease & desist up to actually suing you - that is the question.
For what it's worth, I'm musically inclined & would love to start a similar type of blog talking about the various techniques used in different songs, but this same issue prevents me from going ahead & doing it.
Might your friend want to consider embedding youtube videos instead? In that case then the RIAA will likely skip your friend and go straight to youtube for the takedown notices.
Incidentally, the RIAA has been known to go after people who have music on in the background while they do a regular video podcast.
posted by MesoFilter at 7:27 AM on March 3, 2010
This is civil law, not criminal law. "Is this illegal" isn't exactly the question. "Will they take action against me" - ranging from a takedown notice or a cease & desist up to actually suing you - that is the question.
For what it's worth, I'm musically inclined & would love to start a similar type of blog talking about the various techniques used in different songs, but this same issue prevents me from going ahead & doing it.
Might your friend want to consider embedding youtube videos instead? In that case then the RIAA will likely skip your friend and go straight to youtube for the takedown notices.
Incidentally, the RIAA has been known to go after people who have music on in the background while they do a regular video podcast.
posted by MesoFilter at 7:27 AM on March 3, 2010
What Brittanie said.
Read this and decide, but I think the real question is, 'when this music gets taken down, will you fight it?'
posted by infinitefloatingbrains at 9:27 AM on March 3, 2010
Read this and decide, but I think the real question is, 'when this music gets taken down, will you fight it?'
posted by infinitefloatingbrains at 9:27 AM on March 3, 2010
In the UK, where it's called fair dealing, it would be illegal. Note that, various bloggers seem to post full tunes with impunity. Not sure how they get away with it.
posted by TheRaven at 9:51 AM on March 3, 2010
posted by TheRaven at 9:51 AM on March 3, 2010
use a flash widget to make the music playable in the web browser instead of downloadable and you'll probably avoid trouble. i don't have any specific suggestions for flash software but i've seen 'em used around the mp3 world.
posted by noloveforned at 10:29 AM on March 3, 2010
posted by noloveforned at 10:29 AM on March 3, 2010
The length of the material is not relevant to copyright coverage. For some reason there is a persistent myth about this.
Non-commercial use is a component of fair use but repeated precedents have established that it is not sufficient to establish fair use.
Offering copyrighted materials for streaming is no less illegal than offering it for downloading.
What your friend is proposing would be clearly illegal in the U.S., U.K. and Canada. Anything you see doing this or anything like it, is illegal, it hasn't been taken down because it hasn't been gotten to yet. MP3 blogs such as TheRaven was alluding to are simply illegal blogs that haven't been addressed by the holders of the copyrights they are violating although this is beginning to change (there was a recent FPP about it on Metafilter you can go look up if you like).
It's very unlikely your friend would face consequences greater than getting shut down by a DMCA notice. It's possible she could lose hosting or internet service due to her actions violating the TOS of her ISP. No one has yet been subject to direct legal action for this type of infringement as far as I know and I do follow this news fairly closely. Personally I wouldn't want to put myself in the liability - I mean, up to a point nobody had ever been legally attacked for file sharing, right? Ring tones seem to be kind of seen as a revenue growth potential area for the industry so I personally wouldn't touch that with a ten foot pole, on the very tiny chance of getting to be made an example of for how you can't just go and give away other people's copyrights for ring tones, young ruffian.
Most likely scenario is that unless the blog or whatever becomes big and popular, it will never attract the attention of rights holders and will be perfectly fine. Next most likely scenario is her host yanks her site, so she should make sure she backs up everything in real time lest she lose things she's written. Nobody can judge the likelihood of her being subject to a legal action, as it has yet to happen in this kind of context.
posted by nanojath at 11:06 AM on March 3, 2010 [1 favorite]
Non-commercial use is a component of fair use but repeated precedents have established that it is not sufficient to establish fair use.
Offering copyrighted materials for streaming is no less illegal than offering it for downloading.
What your friend is proposing would be clearly illegal in the U.S., U.K. and Canada. Anything you see doing this or anything like it, is illegal, it hasn't been taken down because it hasn't been gotten to yet. MP3 blogs such as TheRaven was alluding to are simply illegal blogs that haven't been addressed by the holders of the copyrights they are violating although this is beginning to change (there was a recent FPP about it on Metafilter you can go look up if you like).
It's very unlikely your friend would face consequences greater than getting shut down by a DMCA notice. It's possible she could lose hosting or internet service due to her actions violating the TOS of her ISP. No one has yet been subject to direct legal action for this type of infringement as far as I know and I do follow this news fairly closely. Personally I wouldn't want to put myself in the liability - I mean, up to a point nobody had ever been legally attacked for file sharing, right? Ring tones seem to be kind of seen as a revenue growth potential area for the industry so I personally wouldn't touch that with a ten foot pole, on the very tiny chance of getting to be made an example of for how you can't just go and give away other people's copyrights for ring tones, young ruffian.
Most likely scenario is that unless the blog or whatever becomes big and popular, it will never attract the attention of rights holders and will be perfectly fine. Next most likely scenario is her host yanks her site, so she should make sure she backs up everything in real time lest she lose things she's written. Nobody can judge the likelihood of her being subject to a legal action, as it has yet to happen in this kind of context.
posted by nanojath at 11:06 AM on March 3, 2010 [1 favorite]
nanojath: "The length of the material is not relevant to copyright coverage. For some reason there is a persistent myth about this."
Please correct me if I'm misunderstanding, but surely the Fair Use references to "the amount and substantiality of the portion taken" and "the effect of the use upon the potential market" make the length of the clips very relevant?
I also don't understand how you can assert that it's "clearly illegal" - surely this would only be the case after it's been shown not to be Fair Use in a court of law?
posted by turkeyphant at 3:04 PM on March 3, 2010
Please correct me if I'm misunderstanding, but surely the Fair Use references to "the amount and substantiality of the portion taken" and "the effect of the use upon the potential market" make the length of the clips very relevant?
I also don't understand how you can assert that it's "clearly illegal" - surely this would only be the case after it's been shown not to be Fair Use in a court of law?
posted by turkeyphant at 3:04 PM on March 3, 2010
Response by poster: Sounds like no real consensus or putaway on this one. Thanks for all the input, team.
Since even the other-field lawyers weighing in (here and elsewhere) seem split on the issue, I'm going to advise her to not use clips at all (which likely means shelving the whole blog idea) without first getting real advice from a lawyer with some actual experience in use of clips.
It seems very wrong to me that one could be hassled so for using clips for review purposes, but I realize that matters legal and matters right often fail to intersect in our world.
I'll recommend she find a better way to use that music degree. Kindly.
posted by rokusan at 4:28 AM on March 8, 2010
Since even the other-field lawyers weighing in (here and elsewhere) seem split on the issue, I'm going to advise her to not use clips at all (which likely means shelving the whole blog idea) without first getting real advice from a lawyer with some actual experience in use of clips.
It seems very wrong to me that one could be hassled so for using clips for review purposes, but I realize that matters legal and matters right often fail to intersect in our world.
I'll recommend she find a better way to use that music degree. Kindly.
posted by rokusan at 4:28 AM on March 8, 2010
This thread is closed to new comments.
Bart: Uh, say, are you guys crooks?
Fat Tony: Bart, um, is it wrong to steal a loaf of bread to feed your starving
family?
Bart: No.
Fat Tony: Well, suppose you got a large starving family. Is it wrong to steal
a truckload of bread to feed them?
Bart: Uh uh.
Fat Tony: And, what if your family don't like bread? They like... cigarettes?
Bart: I guess that's okay.
Fat Tony: Now, what if instead of giving them away, you sold them at a price
that was practically giving them away. Would that be a crime, Bart?
Bart: Hell, no!'
That is to say, you put up a blog with a few song snippets here and there, you'll probably be okay. You create a blog with the sole purpose of providing song snippets to download as ringtones - which you seem to slowly reveal as your friend's true intentions - and it won't fly.
posted by hiteleven at 5:03 AM on March 3, 2010