Before we go too far down the rabbit while, 1. Yes, fair use is old (very
old) especially in the US and isn't necessarily related to DMCA. 2. Lenz
v. Universal Music Corp. (2007) which is largely associated with the DMCA,
is a case where 29 seconds of copyrighted work in a home video was proved
to be fair use. It all stems from 4 factors. This is not a rant, this is
what US law bases their rulings on:
In determining whether the use made of a work in any particular case is a
fair use the factors to be considered shall include:
1. The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole;
4. The effect of the use upon the potential market for or value of the
copyrighted work.
To conclude, based on my understanding of fair use and its history in the
US, I have no moral objections with bundling a reproduced "pop" song with
this project. I feel doing so would fall into "fair use" from the
standpoint that 1. LMMS is nonprofit and has no financial gain incentives,
and the track is intended to be used for music education purposes 2. The
nature is humbling by labeling it a "demo" or "sample", which is in itself
claiming to be of less quality than the original, and provides incentive
for users to compare to (and there for legally consume) the original. 3.
The track is a melody only and does not borrow from the copyrighted
recorded vocals (hypothetically, once they are removed). 4. The effect on
the market is positive rather than negative. I feel this is self
explanatory (i.e. we aren't using it to promote religious, political,
vulgar nor objectionable ideas or material). So, no, there are no
copyright infringements if it were bundled, and that is not my opinion,
that is not a rant, that is how I interpret the law, and I am willing to
defend that in court.
(Sorry for formatting, I wrote this email on my phone waiting for my son to
fall asleep)
-Tres
On Jan 22, 2014 7:54 PM, "John Serafino" <[email protected]> wrote:
> Actually, that was a misstep on my part. A cover is a derivative work, but
> that clause does not mean what I said it did. Oops. The clause to consider
> is this:
>
> "Subject to s <http://www.copyright.gov/title17/92chap1.html#107>ections
> 107 through 122, the owner of copyright under this title has the
> exclusive rights to do and to authorize any of the following:
> (1) to reproduce the copyrighted work in copies or phonorecords;
> (2) to prepare derivative works based upon the copyrighted work;"
>
> Covers, which are derivative works, are an exclusive right of the
> copyright holder. Subject to fair use and such, of course.
>
>
> On Wed, Jan 22, 2014 at 6:43 PM, John Serafino <[email protected]> wrote:
>
>> Actually, it being a cover has no technical legal effect. "The subject
>> matter of copyright as specified by section 102 includes compilations
>> and derivative works" A cover is a derivative work, and according to this
>> clause in section 103, derivative works are granted the same protection as
>> originals.
>>
>> Yay legal nitpicking! I hope you all find this interesting or something.
>> If you just find it irritating or counterproductive, please tell me to shut
>> up.
>>
>>
>> On Wed, Jan 22, 2014 at 6:21 PM, Stian Jørgensrud <[email protected]>wrote:
>>
>>> We could indeed get a hard time publishing an original song, but because
>>> it
>>> is a cover and it is just there for demonstration purposes I think we are
>>> safe.
>>>
>>> Pixel8lr is a cool original song by Joshua Wade, perhaps not as good as
>>> the
>>> Fireflies cover and not as interesting because it is not a cover, but
>>> GOOD
>>> http://lmms.sourceforge.net/lsp/index.php?action=show&file=2784
>>>
>>>
>>>
>>> --
>>> View this message in context:
>>> http://linux-multimedia-studio-lmms.996328.n3.nabble.com/Owl-City-Fireflies-tp5199p5218.html
>>> Sent from the lmms-devel mailing list archive at Nabble.com.
>>>
>>>
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>>
>>
>>
>> --
>> Johnny
>>
>
>
>
> --
> Johnny
>
>
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