Tag Archives: recordings

More on Digital Copyright

The other day I wrote about my first copyright dispute, over a 1931 classical recording that I (legally) posted to Soundcloud. I promised to give an update, but it’s not very exciting: within 24 hours I got a very simple email from Soundcloud saying that they had allowed me to post the track. Yay for Soundcloud! But not yay for Drama.

So it’s up. It’s not even a very exciting clip of music, but it’s up:

Seems like a lot of fuss over a quiet, scratchy minute of 1931 sound.

Even more, I decided not to use the sound clip as posted. If you remember, my reason for uploading it was to use it as a “sonic epigraph” in the introduction of my dissertation, to make a point about the nature of hearing sound as opposed to talking about it. Instead of embedding the sound into the Word file, I thought I’d just host it on Soundcloud and give a link to it there. But for the conclusion of the dissertation, I wanted to share the last minute of the same piece, but this time from a recent recording–which means a recording very much still protected by copyright. But after going through the “defending myself” thing, I don’t want to upload that other clip to Soundcloud, and I don’t want to send readers to one online space for one sonic epigraph and then another space for another sonic epigraph, so I just put them both online somewhere else that wasn’t Soundcloud.

The thing is, I think I’m within my fair use rights to share that final minute (of a fourteen-minute copyrighted recording) in the conclusion of my diss, in the same way that I’m within my fair use rights to share quotations (within reason) in my academic publications. The paradox of fair use is that it’s both awesome and crazy-frustrating that there is no absolute way to know if a use is fair or not until a judge says so. The best we can do is work our way through the four-part test included in U.S. copyright law, perhaps with the help of an awesome tool like the University of Minnesota Libraries’ “Thinking though Fair Use” tool. 

But even with the tool, whether or not I can fairly use that last minute of the track is sometimes really hard to tell. Here are a few checkmarks that I wasn’t sure how to check:

  • “Criticism or commentary”: I decided not to check this one, as I’m not criticizing the work or the recording itself. In fact, I’m saying, “Hey, let this work do to you exactly what it’s meant to do!” That is, listen to it.
  • “Transformative use”: I’ve heard this phrase tossed around in different ways, which has left me unsure when something is transformative or not. The checklist’s description is “creates a new work with a new purpose,” which seems to describe someone singing a cover song on YouTube (more on that below), but doesn’t seem to describe the transformative use implied by my using audio editing software to grab a clip. What if I had added fades? Sped the whole thing up a bit? (How much?) How transformative is transformative?
  • “Decorative or other non-critical, non-commentary use”: In some ways, I absolutely want this to be decorative music. But on the other hand, I want it to inspire self-commentary, complex meaning-making. In my dissertation’s conclusion, I ask people to “Listen to it with the weight of this project weighing on it.” That’s kind of critical, kind of not.
  • “User owns lawful copy of the work (bought or otherwise legitimately acquired”: I’ve never heard of this as a factor before. (They list it under the 4th factor, “Effect on the potential market value of the work.”) In this case, they’ve got me: I streamed the track through Spotify and used Audacity to snatch the audio straight from my sound card. Sneaky, yes–but if someone has a definitively fair use reason, isn’t circumvention like this justified? For instance, the DMCA allows professors to break DVD copy protection to grab clips of movies to show in class (at least it did the last time I checked). That means that those professors are using all sorts of sneaky software for sneaky actions that in some circumstances would be mad illegal–but which are totally fair in that case. In another situation, I published an audio essay once that used a couple clips from the score to the 1927 silent film Metropolis. The version of the score I listen to was ripped directly from a DVD by some dude who knows how to do that, and thus it includes tracks that aren’t available on the commercial release of the score. Does the availability or unavailability of a track give me more or less moral ground when using that music for another purpose? I didn’t worry about it for the audio essay because I felt very strongly that I was within fair use (for lots of reasons)–but if I hadn’t been, would the source of the music have mattered?

Above, I mentioned YouTube cover songs, particularly because I just read a stellar piece from Wired on the subject: Andy Baio’s “Criminal Creativity: Untangling Cover Song Licensing on YouTube.” (If you haven’t read Baio’s account of the copyright kerfuffle over the cover image for his 8-bit cover album of Miles Davis’s Kind of Blue, you need to get over there and read it stat. Seriously, why read my blog when you can read his?)

In the Wired piece, Baio describes the crazy difficulty of trying to figure out exactly when a cover song on YouTube is illegal–that is, if I’m allowed to pull out my guitar and record myself singing “Cherub Rock” or not. He points out the trouble behind how we treat creative people who are skirting the edges of current copyright law:

But there’s something strange about this begging-for-forgiveness approach to copyright. It’s like driving without traffic signs, only finding out you broke the law when you’re pulled over.

That’s exactly how I felt with the copyright dispute on my Strauss clip: that I hadn’t been speeding, but I was pulled over anyway and had to explain myself. And now, I think I’m still in my fair use rights to upload my second sound clip to Soundcloud, especially since I can list it as private so that no one will stumble upon the link unless they have a direct link to the file, which they would only get from my dissertation. But I don’t want to explain myself to any more cops.

Baio also gives us the real solution to these issues:

The best solution is the hardest one: To reform copyright law to legalize the distribution of free, non-commercial cover songs.

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My First Copyright Dispute!

I haven’t been blogging lately because of a little ol’ dissertation that I’ll be finishing up next week—but this story is so good that it needs to be shared while it’s still fresh.

In short, I just filed a claim with (the awesome sound-sharing site) SoundCloud to contest its accusation that I had uploaded copyrighted material to the site. Here’s what happened:

Throughout my dissertation, I use tons of epigraphs at the beginning of chapters and sections. This makes sense, because when someone has read so much stuff on his topic, he’s got to use all those awesome quotations  somewhere, and it would be bulky and annoying to fold them all into the main body. But for the introduction to the whole diss, I wanted to use a musical epigraph—a one-minute clip of instrumental music that would do the same things epigraphs usually do: whet the appetite for the upcoming content, surprise the reader a bit, poetically or subtly hint at information to be more didactically expounded upon later. This echoes my argument through the diss for more emphasis on sounds themselves, not sounds-as-explained-in-words or sounds-as-symbolized-on-paper.

For this musical epigraph, I chose to use a minute at the beginning of Richard Strauss’s Till Eulenspiegel’s Merry Pranks (for lots of reasons that I won’t go into here; just read the dissertation if you want to know). Happily, I found a copy of a recording that Strauss himself had conducted for a 1931 78 RPM recording, which the good folks at archive.org had digitized and shared online here. They gave it a Creative Commons BY-NC-SA 3.0 license, meaning that users may legally download this, remix it in any way, and reshare it how they choose, as long as they 1) attribute the work (probably both to Strauss and to the archive.org people who digitized it?), 2) don’t make money from this re-sharing, and 3) use the same CC license when resharing.

So I took the mp3, used Audacity to cut out the first minute, and uploaded it to SoundCloud. (I admit that in my rush, I didn’t check to make sure I was “share aliking” the exact Creative Commons license in the options on SoundCloud, something I figured I would do later. This was definitely my bad—but I was writing some awesome stuff right then and didn’t want to pause.) I wanted to insert a link to this online audio file in the text of my dissertation’s introduction, which seemed a better idea than linking to the whole fourteen-minute piece hosted on archive.org or embedding the file into the Word Doc (which is possible, but I didn’t know how it would translate to different word processors or if it would survive a translation into pdf). 

But SoundCloud stopped me in mid-upload. The sounds matched copyrighted material, they said, so I couldn’t upload it. They gave me the option of contesting the claim, which I did, but they certainly tried to scare me out of it, saying that I was risking future legal trouble, the revocation of my SoundCloud account, and so on. It was definitely big, scary, legal language designed (it seemed) to convince me not to contest the thing at all, to just move on and live a happily timid life where all copyrighted material was STAYED AWAY FROM for all time.

After I agreed that yes, I was dumb enough to contest this thing, I got to these two options:

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But as I explained, neither quite fit my experience. Here’s what I wrote:

My claim doesn’t quite fit into either of the options I’m given here. That is, I do believe that the copyright content has probably been “mistakenly identified,” but I’m *not* “the sole original creator of the uploaded material.”

Simply put, I tried to upload a clip of a piece that archive.org has licensed with a Creative Commons license (BY-NC-SA 3.0), which I downloaded from http://archive.org/details/StraussTillEulenspiegelstrauss. To share just the first minute of this piece, I deleted the parts I didn’t want on my home computer and then reuploaded to SoundCloud to share just the beginning. (That’s because this CC license allows derivative works.)

It seems to me that there are two possibilities for why this was flagged, though there might be more. 1) The archive.org recording is correctly licensed, in which case I may legally share it here (as long as I use the same CC-BY-NC-SA 3.0 license). If that’s true, then perhaps SoundCloud misidentified it because it so many other recordings of this piece *are* copyrighted. If that’s not the case, then there’s the other possibility:

2) Archive.org mistakenly gave this CC license to material that they didn’t have the right to share in this way. If that’s the case, I apologize for trying to upload this copyrighted material to SoundCloud and I take back this request to put it up.

Then at the bottom of the screen, after I gave all my full contact information (required), I checked each of these exciting boxes (also required):

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Intense, huh?

I’ll report here what happens, if anything. As you can probably tell, I’m feeling a little pushed around, but also fairly respectful. That is, there are inevitably defensive emotions that come up when it’s implied that you’re a criminal when you don’t think you are, and I’m still trying to wrap my head/heart around the exact nature of those emotions. But on the other hand, I do support SoundCloud’s decision to use auto-detection technology to keep copyrighted material off their site, and I do support their decision to give me space to explain myself. 

But still, I can’t help but wonder how much people restrict their fair use activities because of this kind of thing. I hate the idea of creative folks wanting to make amazing remixes that exercise their very legal fair use rights, only to shut themselves up out of fear of being bullied. Sigh?

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