I'd like to nitpick your assertion that the track not using the recorded
vocals makes a difference. The melodies are also copyrighted.
I think any reasonable judge/jury would call fair use in this situation.
IMO though, a top dollar lawyer's whole life is persuading the judge/jury
to interpret the law their way. This means that you need to have a
sufficiently untouchable case in your favor or not give the companies any
incentive to attack.
And just to clarify something, number 4 is about the economical effect of
the market. Think laws of supply and demand. If you give away a better
version of the original for free, the market for the original dwindles.
This isn't what's happening here, but that sort of thing is what that
fourth point is for.
On Wed, Jan 22, 2014 at 7:59 PM, Tres Finocchiaro <
[email protected]> wrote:
> 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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>>
--
Johnny
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