Question on Copyrights

This question pertains to the law as it exists today, not as one might wish it to exist.

As I understand it, a person can purchase and play a music CD in his private home or car for his own enjoyment. He can also play it for the enjoyment of guests in his home. He can also loan it to others for their enjoyment in their own private home or car. In fact, the only legal limits involve laws forbidding copying the CD, charging others to listen to the CD or broadcasting the CD over the air waves or in a commercial establishment such as a restaurant.

What about other audio CDs such as audio books, lectures, etc.? I would assume that the same laws applying to music media would apply to any recorded media. As long as the person enjoying it does so within the aforementioned boundaries, he has violated no laws.

I am working my way to a question that involves PROPEL™ local clubs hosting events involving listening to taped lectures in private homes. I have seen some people say that they need "permission" from the copyright owner to do this, yet I see nothing in law that obligates this. Again, I emphasize here that I ask a legal question rather than a moral one. I see no difference between this and stocking an Objectivist tape lecture in a public library for loan at no cost.

Speaking of libraries, would the law allow the enjoyment of such audio media in a public library conference room?

Post 1

Wednesday, February 21, 2007 - 7:14am

Speaking of libraries, would the law allow the enjoyment of such audio media in a public library conference room?

As long as you do not charge for it, yes.

Post 2

Wednesday, February 21, 2007 - 7:18am

What about a private room in a bookstore, coffeehouse, restaurant, etc. where any money made goes to the establishment owner for any incidentals -- food, drink, magazines, etc. -- not related to the played audios?

Post 3

Wednesday, February 21, 2007 - 7:53am

If it can be clearly established this differential, yes... as one could also then bring to hear one's own works, along with these others...

Post 4

Wednesday, February 21, 2007 - 8:14am

There are several places I've shopped where I notice that the music they're playing is a CD. Usually there's a player visible, nearby a small stand where the CD information is displayed. I can't think of a better way to promote the purchase of a CD than that, especially if you're having an enjoyable experience while listening. It would be just silly to call that a copyright violation.

Post 5

Wednesday, February 21, 2007 - 8:51am

Luke, you are getting into murkier territory here, because a copyright holder could argue -- with some justification -- that playing his "for-sale" recording in a group or "public" setting is depriving him of potential sales of his work.

The area is murky because one might say: "Well, what about playing it for classroom use?" Or: "How many people does it take to become a 'public' event? Can't I listen to it with my family in my home? If so, why can't I invite a friend over? If so, how many friends? If so, how about I invite a dozen friends over to the library to listen? And if that's okay, why can't I post a notice advertising the session on my blog -- or on the bulletin board at the library -- or in the newspaper?"

My strictly amateur opinion:

The closer you get to publicly advertising the recorded course/lecture, or holding the listening sessions in a publicly accessible place (a coffee shop, a library, etc.), the more legally vulnerable you may become to a copyright infringement action. That may be the case even if you don't charge admission. The "harm" that could be claimed by the copyright holder is loss of potential sales.

Before you do this, you'd better get a really GOOD copyright attorney's advice on this, and not rely on stranger's opinions online. While copyright infringement suits of this sort probably aren't pursued very often, you'll want to stay on the right side of the law -- if only out of respect for the copyright holder.

Post 6

Wednesday, February 21, 2007 - 9:55am

I will check with my Pre-Paid Legal people on this.

Post 7

Wednesday, February 21, 2007 - 11:15am

I will give them credit: Pre-Paid Legal does reply quickly. The attorney suggested checking http://www.uspto.gov for more information. He did, however, suggest that even if the law allows a group to play an audio lecture at no charge, copyright bullies may still file costly "cease and desist" orders that make fighting them not even worthwhile. If the group does this privately, i.e. unannounced to the world, then the copyright holder will not even know about it in the first place. Conversely, if they know about it due to its announcement on a Web site such as Meetup, then they can engage in their crafty actions rightly or wrongly.

Where are these guys now that the Donahue interview with Ayn Rand has made it onto YouTube?

Moreover, why did I see so many Objectivists cheering rather than jeering at this apparent violation of copyright law?

Following the links, I found these passages:

From http://www.copyright.gov/help/faq/faq-fairuse.html#movies we have:

Can a school show a movie without obtaining permission from the copyright owner?

If the movie is for entertainment purposes, you need to get a clearance or license for its performance.

It is not necessary to obtain permission if you show the movie in the course of “face-to-face teaching activities” in a nonprofit educational institution, in a classroom or similar place devoted to instruction, if the copy of the movie being performed is a lawful copy. 17 U.S.C. § 110(1). This exemption encompasses instructional activities relating to a wide variety of subjects, but it does not include performances for recreation or entertainment purposes , even if there is cultural value or intellectual appeal.

Questions regarding this provision of the copyright law should be made to the legal counsel of the school or school system.

From http://en.wikibooks.org/wiki/US_Copyright_Law#Infringement_of_right_to_distribute we have:

Infringement of right to distribute

Copyright owners also have the sole right to distribute copies of their work, whether through sales or otherwise. This includes the right to import: 17 U.S.C. § 602 bans unauthorized importation of copyrighted works, except for certain personal or educational uses.

The key exception to this right is the first sale doctrine. Once a legal copy is sold, the copyright holder has no further control over its distribution. The only exceptions to this doctrine are sound recordings and computer programs, which cannot be rented out even after their first sale. 17 U.S.C. § 109.

From http://en.wikibooks.org/wiki/US_Copyright_Law#Criminal_infringement we have:

Criminal infringement 17 U.S.C. § 506(a) provides that an infringer faces criminal liability in two situations:
When their infringement is "for purposes of commercial advantage or private financial gain."
When they distribute "1 or more copies or phonorecords of 1 or more copyrighted works" with a total value of greater than $1,000 within any 180-day period.
Criminal infringement is punishable by up to ten years in prison (for repeat offenders). See 18 U.S.C. § 2319.

From http://cs-www.cs.yale.edu/homes/jf/MF.doc we have:

Of course, while the first sale doctrine expresses elements of property law, it does point out some fundamental characteristics of copyright law. First, it shows that maximizing the return to authors and publishers is not, in fact, the ultimate aim of copyright. Through the first sale doctrine, among other things, individuals can gain access to copyrighted works through a number of means, many of which create no direct financial benefit for the copyright owner. After all, if you borrow a book from a friend, you are potentially depriving the publisher of a sale. Second, it shows that copyright owners do not have the right to regulate use (other than uses explicitly governed by copyright law itself) once the work is released into public channels. Once a member of the public acquires a particular copy of a work, he can use it in any legal manner he desires. If a reader desires to read the last chapter of the mystery novel first, he can do it, regardless of the copyright owner’s desires. This shows that, traditionally, use-control has not been an exclusive right of the copyright owner.

All this begs too many questions. In any case, my experience has suggested that book discussions tend to be more lively than sitting for an hour listening to a lecture and then discussing that. The former allows for homework prior to the discussion and thus leaves more time for actual discussing whereas the latter does not.

(Edited by Luke Setzer on 2/21, 11:54am)

Post 8

Wednesday, February 21, 2007 - 3:04pm

FAIR USE NOTICE: This post may contain copyrighted (© ) materials. Such material is made available for educational purposes Title 17 U.S.C. section 107 of the US Copyright Law. http://www.myspace.com/sconiers10

Chapter 1 Subject Matter and Scope of Copyright

107. Limitations on exclusive rights: Fair use

Post 9

Wednesday, February 21, 2007 - 9:49pm

Hi Luke,

Under federal law, you're not allowed to publicly display a copyrighted work without the owner's permission. Here, the relevant meaning of "publicly" is: at a place open to the public or where a substantial number of persons or acquaintences are gathered. You gotta use your judgment.

That said, you don't need the owner's permission if you could make out a defense of fair use. A court weighs four factors in determining fair use. The first three are (1) purpose and character of the use of the copyrighted work, (2) the nature of the copyrighted work, and (3) the amount of the work used. I'll glaze over those and focus on the fourth. (4) the effect on the potential market for the copyrighted work. As Robert mentioned, if your use of the work cuts into the owner's sales, that raises a red flag. But it's more than sales. If you're making more money by virtue of the copyrighted work -- like maybe you sell more popcorn because you're playing a great lecture, that raises red flags, too. The owner might have an equitable claim against you by arguing that you were unjustly enriched. I should mention that a prima facie case of fair use typically involves a library or small business. Maybe that's handy for you.

From a practical point of view, most copyright owners won't bother messing with you if the legal fees of messing with you would exceed the expected award they could get by suing you.

DISCLAIMER: I'm not your lawyer. This is not legal advice. This is merely discussion.

Jordan, Esq.

Post 10

Thursday, February 22, 2007 - 10:20am

This whole question falls under the reason performing rights organizations came into existence for music. As the question interests me, I delved into it some. I did not find any clear-cut legislation or even legal discussion of the matter. So here are my thoughts.

Should a publisher draw up a contract for use of an audiobook or taped lecture in an organized educational gathering, it would be a royalty or licensing contract. However, as the probability of any income generated from this is minimal, most owners won't even bother to think about it in legal terms.

But, still, this is more a matter of degree than kind because the law does protect audio recordings. For a one-time use within a regular small gathering where other works are constantly presented and discussed, even if admission is charged or other products are sold at the place, I can't think of anyone who would make an issue out of this. However, if someone were to take Nathaniel Branden's lecture course, "Basic Principles of Objectivism" or Peikoff's course, "Understanding Objectivism," organize a series of gatherings to listen to it and charge admission, permission would be needed and a royalty contract with fee would probably be drawn up if permission were granted. A good portion of NBI's income was derived from this principle at the dawn of Objectivism.

In most cases, I would say stay within the fair use boundaries if no permission is sought. This means do not use whole works or whole lectures—use only small excerpts that deal with the issues under discussion. In the case of using whole works or if there are any doubts, simply write to the publisher or author/lecturer, explain the use and request permission. From what I have read so far, most will be more than glad to grant it without cost.

I even did the following for images once to get around the issue of overly-bothering a very busy (and somewhat famous) person. I imagine this would work for audiobooks. I was pretty sure that some images from another site (ones that looked like they had not made the Internet rounds) could be used on my site, but I had a doubt. But there was a time factor involved. So I posted them and sent the owner the links to what I had done, telling her what my purpose was and that I would be more than happy to remove them if she had any objection. I also stated that if she did not respond, I would keep them up and for her to please accept my gratitude for not objecting.

In this manner, she did not have to take time from her day to reply. Some people find this to be an irritating imposition when no income is or can be involved, but they would have no real objection to that specific use.

Thus, in the present case, I would send a simple note to the copyright owner of the audiobook stating an intent to use it under such-and-such circumstance (giving full details about time and place and basic financial info of the organized meeting) and asking if there are any objections or special conditions required, and stating that no reply will be construed not as a license, but simply as "no objection," with all due thanks. That should cover all bases, legal, moral and convenience.

If the owner presents any objections or unreasonable conditions (which is proper because, after all, he owns the rights), simply use something else.

Michael

Post 11

Friday, February 23, 2007 - 1:46am

MSK wrote:

However, if someone were to take Nathaniel Branden's lecture course, "Basic Principles of Objectivism" or Peikoff's course, "Understanding Objectivism," organize a series of gatherings to listen to it and charge admission, permission would be needed and a royalty contract with fee would probably be drawn up if permission were granted. A good portion of NBI's income was derived from this principle at the dawn of Objectivism.

This still does not answer the question of "no admission charge" listenings.

What astounds me to no end is that none of the major players in Objectivism today make this a standard practice. If it made money for NBI it can make money for anybody. It ought to be a standard practice boldly announced in the catalogues rather than just hidden away in some dark corner leaving guesswork for the rest of us.

I know TAS Objectivism Store has somewhere on their site a statement that clubs can listen to their audios on a one time basis or some such but I have seen nothing on this at the Ayn Rand Bookstore site. They could probably sell more product if they adopted such a policy. Better yet, do like Blackstone Audiobooks and rent the products on a monthly basis. Better still, turn them into downloadable files encrypted a la Audible so that only licensed listeners can play them but so cheaply that anyone can afford them.

Bah! How can supposedly pro-capitalist organizations take such a non-capitalistic approach? I'd be very interested to see the demographics of people who can afford to purchase the many high-priced audio and video products of these stores for personal consumption and long-range storage. This latter becomes especially vexing and explains why I did a major selloff of my stockpile on eBay a few years ago. Again, using modern Internet media methods would prove much better for all concerned.

(Edited by Luke Setzer on 2/23, 1:47am)

Post 12

Friday, February 23, 2007 - 9:30am

I thought the original question was about a legal issue and when it was OK to use intellectual property rights without seeking permission from the owner.

Now I don't understand the question.

btw - The idea of rentals is a good one. That is precisely what NBI did with tape recordings (except they did it for groups). They started selling vinyl LP records to individuals. Then the break with Rand happened and NB and BB continued selling their lectures on LP's for a while.

It seems that this format (which evolved into cassette tape and CD) was adopted in the Objectivist world for distributing lectures and little in the way of innovation has occurred ever since.

I think there is a little paranoia involved in keeping recordings of lectures high-priced. The producers do not trust their customers and wish to micro-control their material once it has been purchased. Since recording media is so easy to reproduce, there is no real way to do that any longer without involving the customer's own will. Software developers came up with one hell of a marketing idea that provided income to oodles of people that tool precisely this reality into account: shareware. This approach recognizes that some users will not pay, but it appeals to the user's conscious and it has been very successful. The rental idea does that, too.

Also, there is a whole new technology available (the Internet) and it has been used poorly so far. Objectivist sites are basically used for advertising their own products, selling their very limited products as mail-order material and distributing freebie information and articles. They are usually not well organized. Some, like Full Context and The Objectivism Reference Center close after a while and simply leave an intellectual hole. The TAS and ARI sites are maintained by their parent groups, which are essentially funded by donations.

The only real innovation that has shown any development has been discussion forums, which are starting to proliferate like small clubs popping up all over. I expect many, many more Objectivist Internet forums in the future. Still, this has not turned into a money-making enterprise as of yet. The approaches I have seen so far (including my own) have been too limited to make much money. But I have no doubt that an innovative approach will be found that capitalizes properly on the new reality of the Internet as a medium. In my thinking, this is a whole new ball game that is still being played by rules that pertain to another game.

Michael

Post 13

Friday, February 23, 2007 - 1:26pm

Corrections.

In Post 12 I would like to make 2 corrections—one an addition to clarify an idea and another to correct a typo that passed the spell checker.

1. I originally wrote:

"btw - The idea of rentals is a good one. That is precisely what NBI did with tape recordings (except they did it for groups). They started selling vinyl LP records to individuals."

This should now read:

"btw - The idea of rentals is a good one. That is precisely what NBI did with tape recordings (except they did it for groups). When the idea of actually selling the lectures to individuals arose, they started selling vinyl LP records."

2. I originally wrote:

"Software developers came up with one hell of a marketing idea that provided income to oodles of people that tool precisely this reality into account: shareware."

This should now read:

"Software developers came up with one hell of a marketing idea that provided income to oodles of people that take precisely this reality into account: shareware."

I have no idea how the work "tool" crept in.

Michael

Post 14

Friday, February 23, 2007 - 1:57pm

MSK wrote:

Thus, in the present case, I would send a simple note to the copyright owner of the audiobook stating an intent to use it under such-and-such circumstance (giving full details about time and place and basic financial info of the organized meeting) and asking if there are any objections or special conditions required, and stating that no reply will be construed not as a license, but simply as "no objection," with all due thanks. That should cover all bases, legal, moral and convenience.

Later, he wrote:

I thought the original question was about a legal issue and when it was OK to use intellectual property rights without seeking permission from the owner.

Now I don't understand the question.

What I am trying to say is that I am still puzzling over why any legal permission is needed for a situation that involves neither admission costs nor copying of materials.

As I stated earlier, this is getting to be so much trouble as to make questionable whether benefits outweigh costs. But as usual, I want to push the absolute limits of the law in my quest for maximum freedom of action without permission. A right, after all, is a freedom to act without permission. I have no interest in even pretending that I need someone else's permission to act when the law makes no such demand of me. Such unwarranted precedents only hinder rather than help my personal liberty.

Post 15

Friday, February 23, 2007 - 5:25pm

It ought to be a standard practice boldly announced in the catalogues rather than just hidden away in some dark corner leaving guesswork for the rest of us.

Couldn't agree more. I never understood ARI's weird policies regarding it's recorded courses, which are all excellent. I'm thinking it's because they're so paranoid of potential bootlegging issues, they just keep the price sky high to squelch any copying problems.

Another possible draw back in ARI's eyes, if they were sold cheaply, making them available to everyone, the market would get saturated. Seeing as that ARI considers Objectivism a "closed" system, coming up with something "new" to refresh the market would be difficult, if not impossible. Personally, I don't think it's difficult or impossible, so I don't understand them at all.

Think about how long Christianity's been around. The ideology is static, everyone knows the story. Yet the market for anything "Christian" remains strong. Books, tapes, dvd's, are all sold at reasonable costs, and there's always more where those came from.

ARI is clueless about creating new markets. It's frustrating that Christians know how to create them with an inferior song and dance.

Post 16

Friday, February 23, 2007 - 6:30pm

I wonder about that explanation. A high price, holding other factors equal, is an incentive to bootlegging; the more the seller charges, the more you save by stealing. The movie studios learned this when home video was new and, at the time anyway, they largely did away with unauthorized copying by selling videos so cheaply that bootlegging didn't pay.

More likely ARI/ARS set their prices high because demand is inelastic. The audience is enthusiastic and willing to pay to have the material now. NBI did the same, charging $3.50 for a taped lecture and $7 live when a movie was a buck. You want cheap, buy a book. You want really cheap, borrow somebody else's copy or check it out of the library. High-elasticity customers do just this. In any case, ARI and TAS are constantly coming up with new material, so the question of why they don't is moot.

(Edited by Peter Reidy on 2/23, 6:34pm)

Post 17

Friday, February 23, 2007 - 3:51pm

There is a misunderstanding here. The question is not "legal permission." The government does not need to grant permission for anything. What I suggested was obtaining personal permission (or non-objection) from the owner to avoid possible legal problems later if he becomes disgruntled and makes trouble.

I thought I made it clear that I was unable to find the exact legal status of the case under discussion. The Fair Use law, to my understanding, basically covers the use of partial works, not entire works.

Since there are doubts and there are ownership rights involved, and like it or not, public performance can be construed for the entire work in this case ("performance" being a category of use protected by intellectual property rights), it is better to be safe than sorry if an entire work is involved.

As to finances, there is a special protection in law called "moral rights" where money is secondary. "Moral rights" means that an author retains authorship irrespective of anything else (nobody can take that away from him ever), and he can prohibit his work from being used in a manner that disfigures it. An extreme case (for easy illustration) would be using a philosophy lecture series as a background for a hog race and advertising it in public as such.

"Moral rights" is just one area where a disgruntled owner can cause a headache. There are more considerations, but it should be clear that money is not the only issue with intellectual property rights.

Back to money, though. The owner simply has the right to decide if he wants to charge a fee or not for his work if a public audience is gathered specifically to hear it in its entirety and advertising/publicity of the work are involved.

Asking for personal permission from an owner may be inconvenient, but this is what happens when the rights of more than one person are considered. Both owner and user have rights. When an action by one throws these rights into conflict, both owner and user need to come to an understanding. Otherwise, if the conflict is pursued by either party, the law will decide. And that means the involvement of a third individual, like a judge, who represents the government. God knows what he'll do, but whatever it is, it will be binding. That's just reality.

Michael

Post 18

Friday, February 23, 2007 - 9:13pm

More likely ARI/ARS set their prices high because demand is inelastic. The audience is enthusiastic and willing to pay to have the material now.

I'm enthusiastic and want it now, but I'm not willing to go into debt for them!

Sooo, how about if a group of people pool their money and buy the courses to share between them? Shoot, I'd do that!

Post 19

Saturday, February 24, 2007 - 5:46am