Daily Updates

Goodnight Kiss Music (BMI) & Scene Stealer Music (ASCAP)

May 28 - June 20, 2000

JANET'S RESPONSE (continued from Pt. 1):
...Why do you think it's called "bootleg"?  Whatever it is
that is your chosen profession, would you mind giving it all away to
the list because we want it?

Cam wrote:
<<laws of the land definitely draw a distinction between the theft of
physical property and the theft(borrowing) of intellectual property.
The copying of music for personal use seems to fall into that large
grey area of "fair use" and does not constitute theft in the same
light as theft of personal property. On the other hand, copying and
reselling this music for personal financial gain is indeed theft.>>

Indeed, true... we don't "broadcast" our diamond necklace to the
world in the same way as we do our song.  We logically accept that
after X amount of broadcasted years, control would not be possible,
and that "gray area" of "fair use" does fall in after a length of
uses.  That is HUGELY different from releases that still have a
commercial "new use" value being TAKEN AT WHIM.  (I tried to
capsulize this, for brevity...we could detail for hours, otherwise,
but thanks for the understanding, Cam), this also brings us to:

Patty wrote:
<<  Does this mean I have no right to sell any music I have, over the
years, acquired at my garage sale?  And am I a thief if I buy some
music at somebody else's garage sale?  The artists are not being
recompensed for their property here....>>

Actually, in this case, you are in the clear, Patty.  There is also a
law about 1st sale rights (although I can't give you the law #), it
basically provides that part of that little 7.8cent royalty that was
paid on the orginal sale of that record covers you.  The industry
realized that once an album gets old, people would sell them at
garage sales, used record stores, etc.  THIS IS MUCH DIFFERENT FROM
MAKING COPIES FOR SALE.  You are, in the beginning, BUYING a record. 
It is ONE unit.  You resell that SAME unit, fine.  IT IS THOSE WHO
FOR DISTRIBUTION who are acting illegally.

This is why Napster/Spinner/Mp3, etc. are so wrong when it comes to
UNPROVIDED approvals for uses.  There are MILLIONS of people thinking
that "My recording on the NET deprives NO ONE of ANYTHING"; surely
even the most simple mind can do the math there. If I CHOOSE to give
my work away at those places, fine...foolish, but fine.  But in this
protest, I am referring to the majority of Professional Musicians who
do NOT make that choice, yet are victims of those places.

dy wrote:
<<ASCAP and BMI even working together, would probably not satisfy the
needs of "music generators" who aren't members of those groups.>>

Also part of the problem.  If the Performing Rights Orgs (BMI, et.al),
the broadcasters (NBC,et.al), and the Internet (MP3, et.al) could
chose one encoding system (just like the software developers do), the
protections would be in place.  Anyone want to try to make them
choose the same vehicle?? Good luck... (I've been a member of a
committee for that purpose for two years.)  (and thank you for the
support...Robin, also!)

Send me another p.o.v. if you think it's valid.  If I hear a VALID
reasoning, I'll shut up  (maybe).  :)  (uh... probably not, tho...)

Cathy wrote:
<<I just thought of this other inquiry with regards to your question
on song sheets and copyrights -- would it also depend on whether the
company who sold that particular song sheet, was still in business?
Also the arrangements of these songs may be different than the
current arrangements today of the same song; Would this affect the
copyright status of that particular sheet and the year it came out?
I'm probably talking a bunch of nonsense. :} But I've been
wondering about your question, myself. Cathy R.>>

No, very valid question! Arrangements (in general) cannot be
copyrighted, however, as Lionel Richie found out (Ghostbusters),
the arrangement of the song "Gotta Get a New Drug", which was lifted
almost note for note for "Ghostbusters", was considered copyright
infringement, though some considered it arrangement only.  The song
sheet in general is a simple arrangement, and the royalty is covered
for the writers in the selling of the sheet.  The law is broken if
you make a COPY of that sheet. 

Now, what about out-of-print sheets?? You contact the publisher, and
they give you permission to print a new copy at a reduced rate.  For
example, "Scarlet Ribbons" is "permanently out of print".  I had to
contact EMI and make a deal to pay for each sheet I wanted to
reproduce. (A normal sheet is now sells for between $3-5, our rate
for repro'ing 1000 (and rights for 4000 more) was set at .85 cents a
sheet to reproduce it.  I had to trace the path, as it was originally
published by Belwin Mills, who is not longer in business.  That led
me to the publishers who bought the copyright in the interim until

Well, here in Canada it is perfectly legal to copy from any of those
sources as long as what you are recording is for your own personal use.
   Should I record something and then sell it, I would be breaking the
law.  I believe the law is the same in the U.S.
   In Canada there is a new law that adds a tax to the selling price of
any blank cassette, with that money going to the various music
publishing firms.
   Using your interpretation of the law, I wonder why tape decks (audio
or video) are equipped with 'record' buttons, as that surely is
encouraging people to violate copyright law.  Is someone who sets their
vcr to record "All My Children" every afternoon so they can watch it in
the evening a lawbreaker??  I don't think so.
   I am not infringing ANY copyright laws by recording from TV, radio or
the Net as long as I do not use it for commercial gain.

Sigh...Napster lost because it was providing the music for it's own
commercial gain.  Home users were not violating the law, only the

My friend in texas Bill  Bragg had a real nice on line radio show
archive but he had to take it down on  account of people were selling
his show on ebay

Of course, because selling it is a violation of copyright law and is
therefore illegal.  By the way, Spinner has nothing in common with
Napster or MP3.  Spinner pays for the right to broadcast the music over
the Net.

I'm assuming that your "(in general)" would allow for instances where you
can check ASCAP and find songs with a name such as Benny Goodman's, listed
as a co-composer, yet the song was written before he was born? I've been
told that his name is on a specific arrangement of the song.

What about Paul Simon's arrangement of "Scarborough Fair"?  This is actually
an English folk song - Simon heard Martin Carthy performing it while he was
in the UK in the early 1960s.  He "borrowed" this version for his recording
and duly collected all the royalties without crediting Carthy.  Similar
thing with Paul McCartney's version of "Mull of Kintyre" and Cat Steven's
"Morning Has Broken" - both singers slightly changed old songs and collected
royalties on them.  And - returning to our period - who collected the
royalties on Maxine Sullivan's "Loch Lomond"?

More sighs...at least here in the U.S. of A. where the RIAA
(Recording Industry Association of America) disagrees with you.
The following questions and answers are excerpted from their

                            FAQ on Downloading and Uploading

Q. Does uploading music on the Internet hurt anybody? Isn't it
promotion for the artist?
A. When you post digital music files on the Internet for anyone to
take and keep, it's not promotion but distribution.  It's up to the
artist and copyright owner to decide how their music will be heard,
distributed and promoted.   

Q. Is uploading music from a CD that you own onto an Internet site
for other users to download a violation of copyright law?
A. Yes.  Owning a CD means you own one copy of the music, and the
U.S. record industry believes you should be able to make whatever
personal use you choose. For example, you may make a compilation
recording (on tape or on a CD) to use in the car or while
exercising. But it's a very different matter - and clearly neither
legal nor fair - to make a copy of that CD or even one song
available on the Internet for others to take.

The sound recording copyright holders own the music itself, and have
a number of rights under current federal law that include the right
to control the reproduction, distribution, adaptation, and various
digital transmissions of their works. 

Q. Is it illegal to post music on a website for downloading even if
I don't charge for it?
A. Yes. The question of whether or not you are charging does not
impact the answer to whether or not you are violating copyright law.
If you don't hold the copyright, you can't sell or even give away
unauthorized copies of the sound recording without permission.

Q. Doesn't the First Sale Doctrine allow me to share my own music?
A. The First Sale Doctrine does allow you to resell or give away the
copy of the music that you bought, but it does not allow you to
distribute copies of that music by making it available on an
Internet site for download, or sending digital files to friends.

Q. IF I JUST DOWNLOAD sound recordings, is it still a copyright
A. YES. It is a violation if you upload or download full-length
sound recordings without permission of the copyright owners. You
should assume other people's works are copyrighted and can't be
copied unless you know otherwise.

That explains how Glenn Miller, Guy Lombardo, Artie Shaw, Benny Goodman, etc.
were imitated by so many leaders!

Thanks to daily dispatches filed by the media in the Metallica vs. Napster legal battle, just about everyone is aware of the fact that Napster allows easy trading of copyright-protected music. But it also facilitates distribution of free music-from unknown bands looking for a record contract all the way to Grateful Dead bootlegs (sanctioned by the band itself). So, how can you tell what's what?
You can't.

The introductory message when you launch Napster best sums it up, "Neither the MP3 file format nor the Napster software indicates whether a particular MP3 file has been authorized for copying or distribution...Compliance with copyright laws remains your responsibility." In other words, you're on your own.

Quite frankly, the topic was off-track to the nature of the list at that point, so the owner
implored us to stop. (I did except for a couple of the odd conflict-less questions above!)

AND, MAIL FROM Newsletter Subscribers:

From Bill T, Newsletter Subscriber, quoted from Music Row Magazine, c.2000
all rights reserved worldwide:

Our "isn't it ironic" department this week focuses on the ever-widening
Napster explosion. While the RIAA pursues the nasty song swappers yelling
"respect intellectual property," the major label organization has also been
active in helping to "clarify" new legislation which turns artist recordings
into works made for hire. Sheryl Crow testified before Congress this past
week (supported by artists including Billy Joel, Don Henley and Jimmy
Buffett) to protest the recent copyright law change, originally proposed by
the RIAA, which bars artists from reclaiming their rights to master
recordings after 35 years. "We give the labels our work to exploit for 35
years," said Crow. "Like all authors we should be able to reclaim our work
as Congress intended." RIAA spokesperson Hilary Rosen countered, "I am not
here to downplay or diminish in any way the concerns of our artists over the
way things work in our industry, but I am here to say that whatever the
legitimacy of their issues, they are not applicable to the 'work made for
hire' amendment."

Mostly the amendment affects recordings made during the '70s and
forward. Artists are especially irate because the change was made last year
without hearing or testimony. Completing a triangle with artists and
industry is a core of active fans who are slowly swaying public opinion on
the digital front. To get an uncensored dose of fan sentiment download the
"Napster Bad" cartoon <www.campchaos.com> which features caricatures of
Metallica guitarist James Hetfield and drummer Lars Ulrich explaining how
rich they have become from recording songs which sometimes take "from 12 to
24 hours to write and record." The editorial message isn't funny for the recording
industry, but the delivery is a first rate example of affective viral marketing.
(For more information on "Napster Bad" and a link to download the file also

Hello Janet,

I'd like to make just a little comment on the hot topic of the day.
We live in capitalistic reality. This means that the economy (market)
always dominates (or almost always). The law is always behind the tech.
progress, which is natural, since the law should be made on generalized
phenomenas. In some cases it takes some time to generalize. The internet
is the case: it's in fast development stage, the law is not up to date.
BUT it won't stop the e-business development (do not count on it) !
It's just more efficient. Some artists already have started making 100%
internet deals, J. Page (x-Zep), as an example. DY wrote about PC
scanning of Lexus. Well, once someone comes up with it, you may bet the
old industry will die. But this only means the birth of another one.
My point is: the reality and the enviroment changes, can't be otherwise.
It's for the professional associations (writers, performers ecc) to keep
the law-makers under the pressure and make sure that the law will be good
for all sides (this is what the association mainly created for).
Best regards, as always,


On June 7, 2000, this came in.

Finally, some good news for the embattled MP3.com. The online music service is reportedly close to a settlement in its copyright infringement case with the Recording Industry Association of America (RIAA). MP3.com is expected to pay the RIAA $75 million to $100 million in exchange for the ability to use songs from five major record labels as part of their MyMP3.com service. MyMP3.com lets users store CDs digitally and access them from any computer online. http://www.zdnet.com/zdnn/stories/news/0,4586,2583332,00.html
(courtesy ZDNet)

Web www.goodnightkiss.com

Feel free to send YOUR thoughts on this new Range War.


c.2000 Janet Fisher, Goodnight Kiss