Copyright Litigation- was "There's an app for that!"

[M.A. Bellingham]

Nancy wrote "Someone in my copyright class at National mentioned a
church in Oregon that was sued for copyright infringement and had to
mortgage the building as a result."

Followed by Nick "I'd like to know what the church in Oregon was
doing. Copying hymnals? Buying one copy of a piece for the choir and
making 45 copies so they don't have to buy 46 copies? A clinician at
nationals said something to the effect, that if you're doing it to
save money, its probably illegal. IMHO, the inverse is also true, if
you're copying for a reason other than saving money, its probably
legal."

I too would like to learn more, as a real-life example to speak to the
issue with my choirs. I do not need to know the name of the church,
if that would be hard on them, but it could prove a valuable lesson
for us ALL, directors and ringers alike.

Can we learn more about this case? It's a great example that the
'copyright police' can and does enforce the laws.

MA

M.A. Bellingham

[Rob Meyer]

I'd be interested to know as well. All of us have heard the horror stories about the church who was sued huge amounts of money and had to close their doors, etc. However, I was once in a copyright class where I was told all of those stories were old wives tales meant to scare people and that no church had ever been sued and had to close their doors etc. Now maybe it was a rep from a specific organization that was speaking particularly to their organization's history (maybe ASCAP?); but it would be interesting to hear if anyone out there has the scoop on what really happens or happened?

Inquisitively yours, r

Rob Meyer
from Ann Arbor, MI

Sent from my iPhone

"Everyone is better off with a little art in their daily lives."
Karim Motawi

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[Lee G. Barrow]

Archdiocese of Chicago suit:

http://articles.chicagotribune.com/1990-10-27/news/9003300047_1_appeals-court-chicago-archdiocese-damages

Sent from my iPhone

[Thomas Simpson]

See. Ya steal. You get caught sometimes. 

Thomas 

Sent from my iPhone

[Sue Nelson]

Wow!  Again, asking permission really is cheap insurance.  That article gave me flashbacks of playing guitar in the folk mass when I was a kid, LOL! 

Sue

-----------

http://tinyurl.com/n4k9flc

[Thomas Simpson]

Golly guys!!

Something's going wrong here. I'm not getting all the Handbell - L post. So my responses seems out of context!

I think Nancy misinterpreted my "hands off" post. It's just been so long since I looks all this stuff up and I really don't have the time anymore to look it up again. I agree with her. But I think it's just such a grey area these days. Who knows? I've got bigger fish to fry. And I sure could do it today too. It's been over a 100 in Pasadena this week.

My apologies to Nancy!




Thomas

[Nicholas Barnard]

In this case it looks like they were doing wholesale photocopying and not complying with the license that allowed them to photocopy music. This article: http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1109&context=elr provides a description of what happened. The statement of facts is only on the first four pages, and its short.

The bottom line is the Catholic church only had to pay $190,400 (plus their legal fees of course.) From my reading of the article, this is the exact amount they would've had to pay if they purchased licenses from the publisher. In this case I think the publisher got the short end of the stick.

Nick Barnard

Seattle, WA

On Aug 31, 2013, at 10:09 AM, "Lee G. Barrow" <lgb....@earthlink.net> wrote:

[Nancy Kirkner]

Hi, M.A. (and Rob) this is a fair question.  Because I had a lot of material to cover in the class, I didn't encourage discussion when the case was mentioned.  I felt it was more important to get through the material I had prepared than pursue a tangent, though I wondered about it myself later.  I noted that the already interested and polite members of the class became even more interested in hearing what I had to say, after this point was raised.  One person asked for my opinion of the risks, and, after reminding him that I can't give legal advice, I told him that I feel the *real* question is "What is the right thing to do?"  In churches, in handbell choirs, in schools, we try to learn (and teach) the right way to do things.  We don't talk about what we can get away with, do we?

I didn't respond to many of the earlier comments because I was off this list for two days, and, boy, was that a good thing!  I feel it's fair to ask politely for more information about how people reach the conclusions they do, especially after I was accused of having a closed mind on the issue and there were gratuitous attacks on my credibility.  My questions to Thomas and Doug were sincere - what are your sources?  My sources are listed on my website under Links.  Read them and see if you come to a different conclusion than I did.  Thomas has said he doesn't know the source of his information.  To my knowledge, Doug hasn't responded, and I would really like to hear from you, Doug, if you want to share the information, because I'm sure I could learn something useful from you.  I hope that you gave me the benefit of the doubt and didn't interpret my question to you as disrespect, because none was meant.

Perhaps the missing link in this discussion is how copyright law works.  All rights are reserved to the copyright holder except for documented exceptions.  Therefore, the burden is on us, the music users, to find a relevant exception in a reliable source, hopefully something more substantial than a handout received at a handbell event, a document unlikely to impress any judge or jury.  If we can't point to the exception, then we have no legal right to do whatever it is we think we should be allowed to do.  If the publisher who holds the copyright gives us permission, we're golden.  I ask for and receive permission all the time.  Sometimes I pay for it, usually not.  I've also found, more than once, that copyright holders sometimes don't know the law very well, or they may confuse the law with their company policies.  I know of at least two handbell publishers who are under the impression that a user has the legal right to enlarge music for a sight-impaired ringer.  This right is reserved to non-profit institutions that exist to serve the blind, like the Braille Institute.  It doesn't apply to just any handbell choir, unless you have permission.  

Copyright is a matter of law, not of popular opinion.  We can agree to disagree about the merits of bell brands, but would we agree to disagree about other forms of theft?  If someone on this list said, oh, I figured out I could steal the church's candlesticks and pawn them to pay for my sheet music this year, and if someone else said, oh, good idea, I'm going to try that, would everyone just nod and say that's fine?  If someone wants to put her music on an iPad, nothing I say is going to stop her.  But there are newbies on this list who look up to people with more experience, and maybe they need to hear another side of the story.

I know that in conveying information that runs counter to the handbell culture, I risk making myself a target.  It's a pain, but I'm used to it by now.  I can't tell you how many times people on this list have jumped all over me because they don't like what I've said or done.  Others have been kind enough to write privately in support.  What saddens me most is that some people feel they can't contribute in this forum, because they don't want to be shot down.   So they lurk, and we miss out on the knowledge they could contribute.  In my mind, that's the real problem here.

Best -

Nancy Kirkner

Seattle

www.solobells.com

[Nicholas Barnard]

Hello,

I disagree with Nancy on the subject of format shifting, and as demonstrated lawyers disagree on the legality subject of format shifting. But I have one bit of advise which I hope Nancy can agree with me on: If you have a question of what is or isn't legal, ask a lawyer they're the only ones allowed to give legal advice.

I'll write elsewhere about why I feel so strongly about the fair use components of copyright. If you'd like a link to that once it has been written, email me privately.

Regards,

Nicholas Barnard

Seattle, WA

[TimR]

On Sunday, September 1, 2013 9:32:19 PM UTC-4, Nancy Kirkner wrote:

I know that in conveying information that runs counter to the handbell culture, I risk making myself a target.  It's a pain, but I'm used to it by now.  I can't tell you how many times people on this list have jumped all over me because they don't like what I've said or done.  Others have been kind enough to write privately in support.  What saddens me most is that some people feel they can't contribute in this forum, because they don't want to be shot down.   So they lurk, and we miss out on the knowledge they could contribute.  In my mind, that's the real problem here.

Best -

Nancy Kirkner

Seattle

www.solobells.com

It would be far more convenient if we could all use our own interpretations of fair use, particularly when there doesn't seem to be any real harm to the publishing companies, and if the likelihood of getting caught is low.

But that doesn't make it either legal or ethical.  

When we pay for one copy, we don't expect to get two.  "well, I'm not going to use one of them."  It is very easy to look for excuses, and sometimes as in the case of enlarging for vision it is hard to see another solution.  But most of these are really not gray areas.  Fair use is never a way to avoid paying for another copy.  Making an electronic copy is making a copy, which we don't have permission to do.  Making an enlargement, same thing.  

There ARE gray areas, but this doesn't seem to be one of them.  

I'm a bit more of a purist than some here, obviously.   

[Nancy Kirkner]

Found some more information for those who would like real life examples of consequences of copyright infringement.  This was written for churches by an IP (intellectual property) attorney:  

http://enrichmentjournal.ag.org/201002/201002_042_Copyright.cfm

Note that he puts the "intent" factor in perspective.  It can only work against you, with damages for willful infringement.  Since copyright is "strict liability" (we might say, "ignorance of the law is no excuse") it follows that lack of intent is not an excuse.  

Of possible interest:  the Stanford Copyright and Fair Use Center cites a music file sharing case (Capitol Records Inc. v. Alaujan, 2009 WL 5873136 (D. Mass., 7/27/09)),  where the court found the defendant had confused the idea of fairness with the legal concept of fair use.

The reason we haven't found that Oregon church case yet may be that it didn't go to court, not that it's a myth.  Possibly the church decided to settle rather than incur the legal costs involved in mounting a defense.  Or maybe they knew they were guilty and decided to accept the consequences.

I also remembered that my own performance group got nabbed some years ago.  The group used to present concerts by major guest artists in Seattle, and failed to pay performance royalties.  We (or they, since I didn't belong at the time) got flagged by ASCAP and had pay them.  An IP attorney I worked with to review our current procedures told me never to assume you're too small for ASCAP to go after, that they'll go after anyone who comes to their attention.

Best -

Nancy Kirkner

Seattle

www.solobells.com

On Saturday, August 31, 2013 9:40:00 AM UTC-7, M.A. wrote:

[Nicholas Barnard]

Hello Nancy,

Thank you for providing that link, it was the first link to an article written by a lawyer that you've provided. Although, I'm unclear on where you the statement that intent can only work against you came from. I didn't see that clearly stated in the article. Would you mind pointing me to where that is in the article?

For everyone who doesn't have time to read that article, I'd like to encourage you to do so. In there interim I'd like to raise two quotes from that article: "As the Supreme Court has noted in a leading case about fair use, there are no 'bright-line rules.'" and "It is difficult to know whether any given use of a copyrighted work without permission might be a fair use and thus not copyright infringement. So this is definitely an area where it is prudent to consult with legal counsel."

Cheers,

Nicholas Barnard

Seattle, WA

(I've got a website too…)

[Nancy Kirkner]

Gosh, Nick, I find your comments and questions surprising, almost like you're, well, trying to call me out.   And I know how you feel about that!   Nancy

[Nicholas Barnard]

Nancy,

I've felt the same way about your comments to me, that you were trying to call me out. This was especially frustrating when I initially responded to this thread by providing comments from one lawyer who says format shifting is legal and one lawyer who says format shifting is illegal.

But back to this message, I was just asking you for your source for your statement, isn't that the same thing you asked of Thomas and Doug? What is the saying? Whats good for the goose is good for the gander? Besides, I read the article, then searched for the word "intent" which only occurs three times, none of the occurrences of intent seemed to have any bearing on the statement that intent "... can only work against you…", so I figured the appropriate thing before making other inferences was to ask for clarification.

Nick

(Who is still not pleased about his head being called pointy.)

[Thomas Simpson]

Wait 'till you're called obtuse. Then you can complain!! 

:-) 

Thomas 

Sent from my iPhone

[Nicholas Barnard]

Well, last I checked my head was not a triangle of any variety. That being said I find being acute and indecipherable can be an great way to make a joke, but I find those obtuse characters on sitcoms unbearably dull.

:-p

Nick

[bellm...@earthlink.com]

Hi, Nancy, Nick, Thomas, et al 

I really cannot take time to look up what I've looked up before.   

My first experience with copyright was taking a class at a National Festival (Estes Park, CO, IIRC, when Bob Currier conducted, who was Flammer's editor) with the head of the legal dept. of Flammer/Shawnee Press, who pretty much scared the peejeebers (legal term, I'm sure!) out of everyone. Seems to me he was the one who told me the Diocese/Chicago printed "Edelweiss" with the benediction words in their diocesian newsletter and was fined $80,000 (I quickly Googled this but couldn't find it).  His point was this:  Copy mean copy.  Copyright means the *right* to *copy*, which is held by the *copyright owner* - either original composer or some entity *licensed* by the original composer, who now owns the *copyright*.  In other words, the original writer owns the work but does not own the right to copy the work, if he has licensed his work to someone else (publisher?) the right to make copies.  This is certainly easy enough to understand.  The concept of "format shifting" seems to me to be an excuse for questionable "fair use" ability to make a digital copy, which, of course, is still a copy, and can be licensed.

Fair Use is certainly a conundrum.  At this class, we were told we could use 10% of a copyrighted work for educational purposes as long as the 10% was not a complete, recognizable section (i.e., movement) of a copyrighted work.  Making a copy for ease of page turning, larger for those who need it, so people would not "mess up" orginals with pencil marks, color coding, etc., was indeed a violation of copyright.  It was after that, that I started hearing about people putting music in plastic sheets so they could write whatever on the plastic, keeping the "original" safe - which is okay.  It is understood that original paper copies will degrade for whatever reasons and will need to be replaced (which is expected) with new, legal copies.

My second experience was after being commissioned to write "Festival Finale on 'Jerusalem'" for Area IV in 1988.  Hubert Perry's "Jerusalem, btw, is to England what "America the Beautiful" is to the US.  Originally copyrighted in 1916, the copyright was held by Roberton Publications in Great Britain.  My arrangement was written in 1988.  I contacted Roberton's rep in the US, Theodore Presser, and spoke with the president who gave me a verbal OK to do the arrangement for bells, organ, brass, and later rec'd a permission to arrange letter.  I was told when the movie Chariots of Fire first appeared in England, Roberton Publications filed copyright infringement suit against the producers for their use of "Jerusalem" - and won.  When I asked Presser's secretary about the judgement, she said "it pretty well made everybody's day!"  Roberton contacted me about some international royalty forms which I had to fill out for him and our IRS.  Only received one check, after 3+ years, but it was substantial! :)  Roberton, btw, lived in a windmill in Aylesbury, England!

This has prompted me to see if I can get the copyright back for my arrangement now that it's POP'd.  This was rung at Bay View again this summer and several have asked how to get copies.

Getting back to the discussion, seems to me, buying a copy and putting it on computer/pad/whatever is still making a *copy*, which one should have permission to do from the copyright owner.  More and more companies are providing a license for making electronic/digital copies.

I have already spent more time on this than I have to give.  I'll leave it to others to quash, support, deny, ridicule or just ignore anything I have said. I hope you all have a wonderful day.

[Dellinda Ebeling]

I for one appreciate the constructive information and ideas as well as the how-to-get-permissions I've gotten via email and on another thread.  I've sent Nancy's article to two of the brains in my group, and this last post is helpful for the stories that illustrate the need to comply with the law.  I am already devoting more time than I have as well to evaluating anything and everything our group has done in the past and present so that we will have a future.  As a church we have already been conscious of these issues, but if any rain is to fall on us I definitely do not want it coming from a cloud with my name on it.