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3.02.2009

Copyright and Fair Use

A friend emailed me and asked:

There is a debate going on with a couple of friends, one who believes copying CDs is perfectly legal if he's not making a profit on them. He says, "Seems to me that what I am doing falls under the Fair Use provision. The makers of the music I copy invariably DO make more money because the copies expose the receivers to the music and they buy other music later." Any help?

Here is my response:

Because copyright law is so controversial, I've never actually looked at what is out there on the internet <smile>. Thankfully, a quick Google search gave me a link to a very clear and concise explanation: Copyright and Public Domain Music. It has links to other sites, but their language is really technical and full of "legal-eeze" and therefore, completely unhelpful <smile>.

Another site worth reading debunks several myths about copyright. Also, short, sweet, to the point.

Here's Standford University on Fair Use.

With even a quick glance at "Fair Use" we can see that burning copies of a CD for others is clearly not part of this. Fair Use is there so people can talk about something--such as the lyrics to a song--without having to get permission every time. It is there to make it possible to discuss media, not distribute it.

The argument of "they make more money if I give away copies" is flawed for two reasons: 1. There is no reason to buy a CD if someone has given you a copy of it either digitally or physically. It does not happen. And, 2. Even if it did, that doesn't make it legal. The law says that you are not allowed to give away music you do not own the copyright to. And they can do that because when you purchase a CD or an MP3 you are buying the right to listen to the song. You are not buying a the song itself. You are not buying the right to share the song with others... you can't even legally play the song in public or share it with a large group. The same is true for movies.

"But," someone may object, "Churches do this all the time! Every Sunday we play copyrighted music; sometimes we watch movies clips. So, churches are breaking the law?"

No. They shouldn't be. Every church should be registered with the CCLI. Churches pay royalties they owe through this group. You've likely seen a CCLI account number on the first or last slide of the song's lyrics you're singing. CCLI, I think, also pays out the proper fees to cover other media displays as well (such as those movies you watch for church movie nights and youth group lock-ins).

So, that's the law: It is illegal to give away, share, or even play music in public or for large groups, even if you "own" it.


On the other hand, I firmly believe that copyright law needs some adjustment. And I'm not alone. That's why there has been a rather large movement toward Creative Commons licensing. This is perfect for the next generation of digital content creators, but will likely never be fully embraced by the corporations trying to make money off media production. You can listen to a great talk by Larry Lessig about this movement and why it is so needed.

Other issues I point to all the time:

  • YouTube-since everything is out there on the internet already, and no one will take down Google, why should we be held to a different standard?
  • Free as Business Model (my wife calls it: people pay for what they like)-Homestarrunner.com and Red vs. Blue (not a clean show) are perfect examples of this in action.
  • Educational/for fun projects-current law makes any "derivative work" a crime, but I think there is much to be gained from working with other's media while learning.
  • Real buying patterns-there is some truth to "if they like it they'll buy it, and I'm just getting them to like it." I watched the first season of Chuck completely illegally online, then the second season legally, and I just purchased Season 1 on DVD.

So, there it is: A brief overview of the landscape as I see it currently.

Hope that helps!

~Luke Holzmann
Your Media Production Mentor

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