Public Domain, Downloading and Interpretation

[FedoraGent]

Folks,

I recently had a question that after I did some research did not really find my answer. You see, LizzieMaine's posting about public domain, OTR and sharing music recordings got me to thinking about public domain, downloading and interpretation of a certain scenario.

If a website hosted in France allows for downloading of digitized vintage music labeled "Public Domain" and someone downloads say "Larry Clinton" or "Artie Shaw" titles from that website is this in complete conflict of the Copyright Law in the US. Virtually all music in the United States is copyrighted and may expire in 2067 due to the Sonny Bono law that passed in 1998. This is also provided that the copyright or rights haven't been renewed to cover well past that time.

So, in this scenario who is at fault? The webmaster or the person downloading say a "Larry Clinton" title? And also, would the RIAA search out either party even though the titles are from the 20s, 30s or 40s? Traditionally, the RIAA has sought out people SHARING via Kazaa or P2P sharing utilities. And in some situations litigation has been for downloading MP3s as well. So who would be watching?

Lastly, in April 2008 ASCAP put together a Bill of Artist's rights that made provisions for copyrighted written and recorded music. Quincy Jones was one of the first people to put his signature on the line. Following along with my train of thought, I figure ASCAP would care more than the RIAA because of the age of the published or recorded work.

What do you folks think?

Curiously,

FG.

 

[LizzieMaine]

As I understand it, there's plenty of liability to go around -- those facilitating or hosting illegal downloads are as liable to draw unwanted attention of the Authorities as those doing the downloads. This is illustrated by what happened in old time radio circles about ten years ago, when a company holding legally-granted licenses from rightsholders for distribution of various series went after websites offering free downloads of those programs. Cease-and-desist orders were sent out to quite a few webmasters, and in some cases, web hosts were also pursued.

There are a lot of fingers in the pie on this issue -- ASCAP and BMI, between them, license the *performance* rights to essentially all music compositions written by American composers after 1922. The Harry Fox Agency controls the licensing of *mechanical* rights for the reproduction of copyrighted music. The RIAA represents the interests of record labels who manufacture and distribute recordings of copyrighted music. Any or all of them could come after anyone who downloads or facilitates downloading, or otherwise distributes music or other audio materials to which they do not own or license the rights.

Obviously, the situation is different in other countries -- which is one reason why there's increasing pressure from recording iand music industry interests in the US to enforce uniform international agreements.

As to whether anyone would specifically get sought out for downloading older materials, it depends. The BMG interests, which own the rights to Larry Clinton's recordings as successors to Victor, might or might not bother to pursue, but they'd be much more likely to pursue pirates than whoever holds the rights to some obscure band that made a few sides for Pathe in 1922. It would also have a lot to do with the perceived commercial value of the material -- BMG would be much more likely to crack down on someone bootlegging Glenn Miller recordings than it would somebody trading in illegal Shep Fields tunes.

 

[FedoraGent]

I knew LizzieMaine would reply...and for that I am glad!

Lizzie,

Thanks so much btw, you make valid points with this. I know some other folks that are collecting OTR out here in Northern and Southern California and we've gone round...and round...and round about this. Is Dismuke, Cousin Hepcat or Wild Root...ahem....Forgotten Man out there with two cents on this?

FG.

 

[imported_the_librarian]

Good questions and responses! This is a tough topic to grapple with. I know one my favorite sites, the Internet Archive, hosts a TON of OTR, and they label it as "public domain" ????????????????

Here's a link to a subject search of "OTR" in their available documents:

(Had to delete link due to policy on download sites -- material easily found thru search engine. -- LizzieMaine)

 

[LizzieMaine]

The question of OTR is even more complicated than commercially-released sound recordings. Not only are there script and music copyrights to be considered -- and in the case of scripts, this includes non-expiring common-law copyrights in unpublished manuscripts which became full statutory copyrights with the new 1978 law -- there's also the question of copyright in the program recordings, which is tied up in a vast network of common law, individual state laws, and contracts with performers and unions. The link in my sticky post covers this more fully.

The short answer is that the assumption that OTR is public domain because you don't know who actually owns the rights to it is simply not true. Very little OTR has no potential for a copyright claim to it, and absence of *enforcement* of copyright is not the same as absence of copyright itself.

Lounge policy is that no downloads or links to download sites for copyrighted material are allowed -- we try to enforce that uniformly across the board so as to prevent even the slightest possibility of liability for anyone involved. (Which is why, alas, I have had to remove the link to the Internet Archive. Those who would like to go there can find it easily enough.)

 

[Fletch]

Liz, would it be acceptable:

a) to list such a link in a nonclickable form?
ie: internet archive dot org fwdslash suchandsuch

b) to post a statement like this?
"OTR content is downloadable at the Internet Archive; PM me for the link as FL rules prohibit my posting it."

Shutting off all possible access thru info on FL would be, I think, Draconian. But perhaps we live in Draconian times. Orphan content may soon be locked up, beaten and fed gruel.

As to whether anyone would specifically get sought out for downloading older materials, it depends. The BMG interests, which own the rights to Larry Clinton's recordings as successors to Victor, might or might not bother to pursue, but they'd be much more likely to pursue pirates than whoever holds the rights to some obscure band that made a few sides for Pathe in 1922. It would also have a lot to do with the perceived commercial value of the material -- BMG would be much more likely to crack down on someone bootlegging Glenn Miller recordings than it would somebody trading in illegal Shep Fields tunes.

As to this sort of commercially unviable copyrighted material — which represents probably 95% of what I listen to — I'm convinced it would make an excellent test or precedent case for Big Media to stomp some innocent collector types. With a suitable judicial decision backing them up, they could then easily cobble up an automated process (say by putting Brian Rust's discogs thru a database) to generate a consistent stream of cease-and-desists, thereby opening up a potential revenue stream out of material that their business model would never allow them to make available.

 

[LizzieMaine]

The second option is OK -- as I say, it's easy enough to find such sites without the need for direct links. Just keep it out of the public areas, please.

I will say that I'm not very happy with the IA myself -- they have violated my *own* copyrights by copying and distributing material formerly on my website without my authorization, and have so far not seen fit to remove the material in question, so I would take any claims about "public domain" from them to be very much in doubt. I'd shed no tears if somebody cracked down on them hard.

 

[Fletch]

If it happens, it won't be on behalf of any one individual. It'll be because of a big company with a big legal team. Any such decision would probably take access away from all dedicated scholars and researchers, you and me included.

 

[The Wolf]

I know one site that posted radio shows to download with a warning that people needed to make sure the radio shows were in public demain before uploading to the site. Enough people didn't do the right thing and the site stopped hosting radio shows all together.

BTW, here's Kid Rock's thoughts on it (be warned there a couple of swear words, it is Kid Rock after all) http://www.youtube.com/watch?v=VpCADfZD-eg

Sincerely,
The Wolf

 

[imported_the_librarian]

Love this topic....


I've been doing some digging and came across some links I'll offer up for the sake of discussion and the ambiguity about OTR and copyright in general:

http://www.old-time.com/otrfaq.html

http://reviews.ebay.com/Copyright-a...ovie-Public-Domain_W0QQugidZ10000000002719057

Interesting viewpoint on OTR:

http://www.ad-mkt-review.com/public_html/air/ai200009.html

This viewpoint is interesting:

"...According to The Library of Congress, the status of old time radio recordings made prior to 1978 are generally in the public domain, as sound recordings were not allowed under the previous copyright law and such recordings have not been granted copyright status under the new laws (since to change their status and move them out of the Public Domain would be a violation of Ex-Post-Facto). Once a piece is placed into the public domain for any reason, it remains there legally unless someone brings a case to the Supreme Court to decide otherwise."

(source: http://www.radioshowclassics.com/copyright.html)

Finally, here's a monster link:

http://www.radiolovers.com/copyrights.html

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That's bad that the Internet Archive took material....they have so much good stuff (Prelinger Archives, newsreels, texts,)

This is a great discussion. I know as a blog author, I always try to either contact the holder of an image I want to use on the blog or try to use public domain stuff as determined by the LOC, etc.

 

[LizzieMaine]

This viewpoint is interesting:

"...According to The Library of Congress, the status of old time radio recordings made prior to 1978 are generally in the public domain, as sound recordings were not allowed under the previous copyright law and such recordings have not been granted copyright status under the new laws (since to change their status and move them out of the Public Domain would be a violation of Ex-Post-Facto). Once a piece is placed into the public domain for any reason, it remains there legally unless someone brings a case to the Supreme Court to decide otherwise."

Unfortunately, the LOC never said any such thing. This is another example of wishful thinking, extreme misinterpretation, or just plain hooey on the part of a collector.

Before 1972, sound recordings were not registered for federal copyright. However, they *were* protected under anti-piracy and anti-duplication laws in every state, and those laws remain in force until 2067, when all sound recordings become subject to federal law. A definitive summary of this point by an actual intellectual-property lawyer can be found here: http://chnm.gmu.edu/digitalhistory/links/pdf/chapter7/7.55b.pdf

It is possible for radio *scripts* to be public domain. If they were registered for copyright at the time of creation and that registration was not renewed at the end of the first 28-year term, they *are* PD. However, if they were *not* registered for copyright, they remained under protection of common law copyright as unpublished works (broadcasting alone didn't count as "publication." That protection was perpetual, and became full statutory copyright automatically under the 1978 law.

Scripts and recordings are two different things -- it's possible for a script to be PD, but a recording of a broadcast of that script is still under copyright until 2067.