The Adventures of Accordion Guy in the 21st Century

“Hey, Accordion Boy,” you might say at this point, “in your last posting, you were trying to drive home a point about fair use and just went on about copyright instead!”

To which I would reply, “For starters, that’s Accordion Man, bucko, and you can’t talk about fair use without first defining copyright.”

In my last posting, I said that the idea behind copyright was to promote creativity by granting creators exclusive rights over their work. This control would grant creators the right to control the distribution of their work and to earn fair profit for their creativity by giving them a mechanism for charging a fee (called a royalty) for its use.

The problem with absolute copyright is that it’s too restrictive to be practical. You’d have to ask for the creator’s permission every time you wanted to use his or her work, no matter what (and if they did grant you permission, it would be their right to charge you a royalty fee). If you were writing a book report and wanted to quote passages from that book, you’d have to get permission from the author (and perhaps pay the author a fee). If you wanted to tape a television show that you’d otherwise miss, you would have to contact the studio that owned the show to see if it was okay with them (and perhaps pay them a fee). If you wanted to hum a tune by your favourite recording artist, you’d have to get the permission of the record company (and knowing record companies, you most certainly would have to pay them a fee).

Fair Use

The antitode to this ridiculous restrictiveness is the doctrine of fair use. Fair use is one of the exceptions to copyright, granting the public limited rights to the use of works without the permission of the copyright holder under certain circumstances. The idea behind fair use is to provide people the freedom to use and enjoy the works of creators while still honouring the intent of copyright.

The Legal Definition

Fair use is a fuzzy area of copyright law that’s open to interpretation. Rather than providing some hard-and-fast rules by which one can determine whether the use of a copyrighted work is fair use or not, section 107 of U.S. Copyright law defines four factors that determine when the use of copyrighted work can be considered fair use (the boldface stuff in quotes is from the actual legal doc itself, the indented stuff is mine):

“The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”

The use of a copyrighted work is more likely to be considered fair use if:

• it is being used for educational or non-profit purposes rather than for-profit purposes.
• it is more than a just a copy of the original — say, an alteration or enhancement.
• it is being used for a pupose different from the original
• it is being used for a different audience

“The nature of the copyrighted work”“

The use of a copyrighted work is more likely to be considered fair use if:

• it is already published. A unpublished work has not yet been seen by the public, and may be considered private property — using it may be interpreted as theft.
• it is out of print
• if the work is factual rather than artistic (since facts belong to no one)

“The amount and substantiality of the portion used in relation to the copyrighted work as a whole”

The use of a copyrighted work is more likely to be considered fair use if:

• you use a small fraction of work rather than a significant portion of it
• the portion of the work you use is not the “meat” or “essence” — that is, its use does not adversely affect the creator’s ability to earn fair profit for his/her effort

“The effect of the use upon the potential market for or value of the copyrighted work”

The use of a copyrighted work is more likely to be considered fair use if:

• your work differs from the original
• your work is aimed at a different audience
• your work contains some of your own original material

The Real World

As I mentioned earlier, the four factors in determining what is fair use are guidelines, not hard-and-fast rules and regulations. They are open to legal interpretation. Here are some cases of the fair use of copyrighted works:

• Quoting passages from a work for criticism or review
• Teachers photocopying sections or chapters of books as handouts for their students
• Making a personal copy of a CD, making a “mixed tape” or “mixed CD” of tunes from my library of CDs or converting my CD-based music into MP3 files for playback on my computer or portable MP3 player. You can even make mixed tape/CDs for friends, accordiong to the Audio Home Recording Act
• “Time shifting” — videotaping a television show so that I can view it later (I can’t stay at home to catch SNL, I have a life, dammit!). This was established in a landmark trial often called the “Betamax Case”.
• Parody – the classic case where fair use doctrine protected a parodist is the 2 Live Crew case (yup, the Me So Horny guys) when they did a parody of Roy Orbison’s Pretty Woman.
• Editorial artwork. Here’s an example of fair use of Mickey Mouse.

Take a good look at these examples. Some of them may not apply in the future, if certain industry groups have their way.

Hillary, You Ignorant Slut

No, not Hillary Clinton. I’m referring to Hillary Rosen, president of the RIAA (Recording Industry Association of America). According to their site, the RIAA is “the trade group that represents the companies and people making creative works in the recording industry”. In my none-too-humble opinion, this is a half-truth.

In July 2000, the U.S. Government held a Senate Senate Judiciary Committee hearing on downloading and file trading chaired by Utah Senator Orrin Hatch. Mr. Hatch is both angel and devil, being a man who understands technology, music industry and fair use as well as being the principal architect behind the odious Digital Millenium Copyright Act (a subject for another essay). Hatch is also a recording artist whose songs have broken the top 10 on the Christian charts (not that it would take much, but that’s beside the point). At the hearing, he participated in a most telling exchange about fair use with Ms. Rosen. I hereby invoke fair use by quoting the following passage from Leflaw.net’s story on the hearing:

”Can I make a copy of a CD that I buy and put it into a car?” asked Hatch. When Rosen hemmed and hawed, Hatch muttered, ”The answer is yes.”

”Is it fair use to give the copy to my wife for her car?” Hatch continued. ”Is it fair use for me to rip a CD? Is it fair use if (a computer network) decides for efficiency reasons that one copy is sufficient to serve for storage, instead of keeping 200 separate copies, is that fair use?”

”None of these is fair use,” Rosen eventually replied. She argued that musicians’ willingness to ”tolerate” people making copies was an instance of ”no good deed goes unpunished.”

It would seem that the bad record industry execs are going unpunished.

Next: The technological angle.

Of course, Walt himself is already dead. I’m referring to Disney, the corporation.

I was reading a story in Wired News today, sent there by a link on bOING bOING, a particularly good news blog to which I sometimes provide information and which sometimes links to this ‘umble accordionist’s blog. Being a programmer in the peer-to-peer software world, where issues of copyright and fair use are always close by, this one particular quote jumped out at me. Forgive the extra-large type, but I really want to drive a point home.

“There is no right to fair use…Fair use is a defense against infringement.”

This outright lie was spoken by Preston Padden, who holds the position of Head of Government Relations for the Disney Corporation. I had to make sure I read it right because what he said sounded like insane ranting. He’s declared that the right to fair use — a right that we as people who enjoy creations such as books, music and movies most certainly have — does not exist. Almost as shocking is the fact that an entertainment company needs a deparment devoted solely to maintaining relations witht the government. Goofy (I’m referring to the character named Goofy, not Bush 43) probably has more pull with Congress than Canada, Mexico and the entire European Union combined.

Time for the accordion player to drop a little science…

©

Copyright is the set of exclusive legal rights that creators are given over their works for a limited period of time. The idea behind copyright is to “promote science and the useful arts”. By protecting the works of people who create original works, copyright is supposed to provide a legal mechanism for them to be compensated for their efforts — after all, it stands to reason that creators who can make a living by creating would create more.

The rights of someone who holds the copyright on a work are:

• the right to reproduce the work
• the right to prepare derivative works based upon the work
• the right to distribute copies of the work to the public by selling, renting or lending it
• the right to perform the work in public
• the right to display the work in public
• the right to perform the work publicly by means of a digital audio transmission

Copyright law applies to virtually every form of expression that can be “fixed” (as the lawyers like to put it) in a tangible medium that can contain that expression: paper, film, magnetic tape or disks, optical storage such as CDs or DVDs, or even merely in RAM. You see copyrighted works every day: they’re songs, books, software, and movies, to name a few. The copyright on a work lasts from the moment the work is finished and ends 70 years after the death of the creator of the work.

Copyright ideally belongs to the creator of the work, but it isn’t necessarily that way. A creator may hand copyright over to someone else in exchange for some kind of benefit. One example is my friend, Cory Doctorow, a science fiction author (and a good one, to boot). He owns the copyright to his stories, but he licenses that copyright to his publisher for the duration for as long as they publish his book. If he severs the relationship with his publisher, copyright reverts to him. By getting copyright on the book, the publisher collects the compensation (that is, the moolah, the filthy lucre, tha benjamins) that they are legally entitled to as the holder of the copyright, and they toss Cory his “vig” — that’s publisher talk for his slice of the pie. In return, Cory gets the resources of the publisher: editors, printing presses, distribution and publicity. At least that’s the way it’s supposed to work. Some publishers do well by their authors, some don’t.

The publishers whom I believe do worst by their authors are the record companies. The music industry — an oligarchy since there are few enough “big players” to count on a single hand — are opportunistic profiteers who have turned copyright law into a means of fattening themselves. When an artist or band signs on with a record company, the company owns the copyright on their songs forever. It wasn’t always this way; it used to be that record companies could hold onto the copyright for their artists’ songs for 35 years, after which the artists could reclaim it. However, thanks to a change in copyright law in November 1999, the copyright a song published by a record company belongs to the company forever. Initiated by a congressional aide and scumbag Mitch Glazier and backed by the Record Industry Association of America, this bit of legal sophistry was conceald inside the rather innocuous-sounding Satellite Home Viewing Act of 1999. It redefined recorded music as “works for hire,” and as such, the legal creators of the works were the record companies. The artists, as far as the law was concerned, were reduced to hired hands.

This bit of legal trickery is, as we street accordion players like to say, complete horseshit. A plumber coming to fix your pipes is work for hire. An architect who builds a building for your company is doing work for hire. A photographer who works for a newspaper or magazine as part of reportage is doing work for hire. A composer who is commissioned to write a song or symphony for some event is doing work for hire.

However, an author who comes up with an idea for a book and then writes that book is not doing work for hire, nor was Ansel Adams when he was taking his black-and-white portraits, nor was the Godfather of Soul when he felt like a sex machine and set it to music.

Next time: I’ll cover fair use, and why they want to take this right away from you.

Recommended Reading

The U.S. Copyright Office’s Copyright Basics page. A good place to start.

The FCC’s page for the Satellite Home Viewing Act. See how recording artists lost their right to their own music.

The RIAA’s not done yet. True to form, they tried to sneak in more self-serving changes to copyright through some post 9/11 anti-terrorism bills. There’s nothing like profiting from the deaths of 6,000 innocent people, isn’t there?

Courtney Love Does the Math. The real pirates, she says, are the record companies. A piece so right-on that I could almost forgive her for killing Kurt (just kidding, Courtney).

Just a little busy right now. An update will appear tonight. In the meantime, for your reading pleasure, may I suggest this is your goldfish, speaking?

I’ve been working pretty long hours every day for the past two weeks, what with the company gearing up to get a test version of our software ready for the investors to try. We finished in the wee hours of Friday morning, and I haven’t touched a computer until now. I thought I’d make a quick posting in the blog, and saw this on the Blogger front page:

Woo-hoo!

Thanks, Ev (the guy behind Blogger)!

I just got the strangest mass-mailing I’ve ever seen:

Time Travelers PLEASE HELP !

message: If you are a time traveler or alien disguised as human and or have the technology to travel physically through time I need your help!

My life has been severely tampered with and cursed!!

I have suffered tremendously and am now dying!

I need to be able to:

Travel back in time.

Rewind my life including my age.

Be able to remember what I know now so that I can prevent my life from being tampered with again after I go back.

I am in very great danger and need this immediately!

I am aware that there are many types of time travel and that humans do not do well through certain types.

I need as close to temporal reversion as possible, as safely as possible. To be able to rewind the hands of time in such a way that the universe of now will cease to exist. I know that there are some very powerful people out there with alien or government equipment capable of doing just that.

If you can help me I will pay for your teleport or trip down here, Along with hotel stay, food and all expenses. I will pay top dollar for the equipment. Proof must be provided.

Only if you have this technology and can help me please send me a (SEPARATE) email to:

Robby0809@aol.com

Thanks

I’m thinking about using this as a reply:

Well, here were are again. You have no idea who I am, don’t you?

Not only am I capable of helping you, but I’ve done so twice already.

I can meet all your requirements except one — the one where you retain your memories of everything’s that happened to you up until now. Normally, it would be possible for you to remember the present (and all events leading up to it) when you go back into the past, but you kept insisting that you also want your aging to be reversed. I can only do that by reverting you to your past state, which means that events leading up to what you call “the present” wouldn’t have happened. Which means you’d have nothing to remember. See the problem?

I was willing to let things slide when things went horribly wrong the first time. Initially, it looked as though you were going to live a long and happy life: you had a successful business, you were in the best shape of your life, and you had just married one of the supporting actresses from American Pie. However, you blew it big time when during your honeymoon in Honduras, you caught a butterfly. That butterfly’s wings were supposed to trigger a hurricane that would have devastated the coastline of El Salvador, including the coastal village of La Libertad. Instead, the village was never destroyed, and as a result, a troubled and overindulged little boy grew up to become the Hitler of the 21st century. He managed to turn the eastern seaboard and much of Europe into the world’s largest smouldering graveyards before he was finally stopped. I managed to retrieve you from that timeline — you were under a pile of rubble and half-mad. I decided to try and send you back in time again.

While the course of your life has not been so catastrophic for the rest of the world this time around, you have still managed to make a mess of it for yourself. And this time, you’re resorting to spamming in order to find a time traveller like me. That’s really low.

The biggest shame of it all (and more so because you don’t remember) is that your life wasn’t as bad as you thought when you first came to me for help. You said you wanted to undo your so-called “terrible, terrible mistake“. In retrospect, I should never have honoured your request. Yes, it was an embarassing situation, but “the incident”, as you liked to call it, would have been forgotten soon enough. It’s nothing that a public apology and a little plastic surgery couldn’t have fixed. Besides, while that kind of thing was taboo once, it would have become socially acceptable a few short years later.

I am truly sorry, but I feel that you’re one of those people who will do the same kind of thing over and over, no matter what kind of circumstances they find themselves in. Please do not contact me anymore. If you see me on the street, please do not approach me or speak to me. I will claim not to know you. I cannot be bribed; you will not be able to buy your way into the past again.

In closing, all I can do is offer you some advice:

1. Please try to think before you act.

2. If you don’t do something about that haircut, you and many innocent people will regret it. It may seem trivial, but believe me, I know better.

— Joey

It just occurred to me that in this year alone, I have referred to four different buildings as “the office” and three different bedrooms as “mine”. I’m surprised that I don’t get lost more often.

I’ve already mentioned the current office and the one that came before it; both are located in Toronto. I went to the other two offices during my stint in San Francisco, earlier this year.

Late last summer, the company was flush with good press, and it was decided that we should have an office “where the action is”. One of the founders, Cory, went to San Francisco in September to open the American office, which would largely house the P.R. and business development teams while most of the development would still take place in Toronto. I remember saying something along the lines of “Wouldn’t it be neat to get transferred to the San Francisco office?”, not realizing that I would get the offer about six weeks later.

The first office space was a classic dot-com office: a converted warehouse at the edge of the seedier part of town (San Francisco has these seedy parts in good supply). There wasn’t really a front door — you entered through the loading dock. The entire third floor was being leased by an e-commerce company that specialized in buying stuff in bulk quantities. That company had just laid off people in bulk quantities and were only too happy to sublet half their space to us in exchange for dollars in bulk quantities (the equivalent of taking an Audi TT and losing it in some some teenage rite-of-passage ritual every month).

In a space that could’ve handled 40 people, we were four: general manager Michelle, office manager Robyn, chief evangelist Cory and yours truly as the director of developer relations. My title was just fancy talk for “programmer with ENTP personality profile” (studies have shown that 80% of programmers are INTP). Along with programming, it was my job to take my accordion to developer events, talk to other developers and jump in front of any news cameras. And to think that my Mom once told me that “no one will pay you to be popular.”

The office space was made up of two large areas: the front office, which had the kitchen, and the back office, which had the meeting rooms. The place had high ceilings, tall windows, office-grade wall-to-wall carpeting, exposed pipes and ductwork hanging from the ceilings and a nice (if somewhat out of place with the rest of the industrial look) kitchen. The desks weren’t really desks, but unfinished doors placed on “Burro Brand” sawhorses (the e-commerce company sold them to us for almost nothing). Cory and Robyn were both Disneyphiles and provided some of the decor in the form of Disney theme park memorabilia. A lot of my stuff hadn’t arrived yet, but at least I had my religious clock — a clock that showed a picture of either Jesus or Mary, depending on the angle of the viewer. All of us worked on laptops and listened to music on computer speakers. The neighbourhood was a little rough, so we always took our bikes inside the office, preferring to do it using the freight elevator. Most of the space was unoccupied, and we took advantage of it by either letting the EFF use the space while their offices were getting fumigated or using it as a makeshift velodrome. Simply put, it was the kind of hipster doofus office you’d read about in every new-ecomomy-porn article in Fast Company.

I took the northwest corner of the office. Nobody wanted it because it was too far from the door and the kitchen, but it put me close to two windows, one facing downtown, and the other facing the highway. It also put me a safe distance from Cory’s speakers, which constantly played Disney theme ride music or 1940’s novelty numbers (“goddamned clown music,” my co-worker John called it). The plan was to fill the remainder of the space with business development types, PR flacks and “local talent” — that is, programmers from the Bay Area who didn’t want to move to the Toronto office.

I remember sitting at my desk and surveying the area, thinking Not bad, Mr. deVilla. Not bad at all. I’m going to like it here.

We were out of there two weeks later.

…and that’s why this entry’s a little late. Right now, I’m a little too short of free time.

We are in serious crunch mode. Everybody at the company is in early and leaves late. I’ve heard tell that if we don’t deliver by the deadline, Terrible Things Will Happen.

See you folks in a little while.