Blake Richardson wrote:
From: John Howell <[EMAIL PROTECTED]>
Reply-To: <finale@shsu.edu>
Date: Wed, 30 Jul 2008 13:17:55 -0400
To: <finale@shsu.edu>
Subject: Re: [Finale] Digital music stands
And I'd really like to know where, in what version of "Fair Use," you
find permission for "the user to make a back-up copy." Yes, that's
been established long ago as it applies to commercial recordings, if
I remember correctly, but that does NOT automatically mean that it
applies to sheet music (which is defined as 'material intended to be
used up') and it CERTAINLY does not apply to computer programs,
unless I've completely misread all those legal agreements that we all
have to agree to!
It actually does apply to software and recordings alike. It's not in the
statute itself, but rather in the myriad court decisions that form the bulk
of Fair Use law. Courts have consistently held that requiring a person to
re-buy something as expensive as a software package because their computer's
drive crashed is not reasonable and doesn't further the intent of the
Copyright Clause of the Constitution (which is to promote innovation and the
advance of the arts) and therefore one back-up/archival copy is allowed
under Fair Use. Yes, those End-User Licensing Agreements (EULAs) that come
shrink-wrapped around your software (or to which you must click "agree"
before installing) say otherwise but several courts have ruled in favor of
the consumer on this issue despite the EULA. EULAs have also been found to
be invalid when they try to circumvent the First Sale doctrine.
Actually, many (most?) of the EULAs that I've actually read
through have included text to the effect that I have a right
to make a backup of the medium.
Does this Fair Use principle apply to making "back-up" copies of sheet
music? Who knows? A definitive answer can't be stated one way or the other
until a court somewhere rules in a case involving sheet music (or something
very similar). On the face of it, however, the principle would seem to be
Courts have ruled on that -- the publishers have won when
they have taken various entities to court over the use of
photocopies.
the same: that it's unreasonable to expect the customer to re-purchase
something rather expensive that they've legitimately paid for once merely
because it "wears out" or is "used up". To say otherwise goes against the
fundamental purpose for which copyright was included in the U.S.
Constitution in the first place.
The publishers would refute your "rather expensive"
statement (I agree with you, however) in that they claim
(although it often takes months and months and hours on the
phone and many letters back and forth to finally get the
replacement parts) that you can buy parts for only a couple
of dollars each, and it would be rare that an entire set of
music would become unusable at the same time absent a major
catastrophe such as a fire or flood, which would just as
likely destroy any backup copies as well.
And they shoot themselves in the foot by taking works
permanently out of print, so they remove all possibility of
purchasing replacement parts.
I've not heard or read of anybody using that possibility in
defense of their making backup copies of printed music.
Barnhouse is one publisher which has been smart enough to
not only keep at least one copy of every work they've ever
published so they could make copies available for sale, but
they have finally digitized it all so they can more
efficiently do a print-on-demand to fill orders for older
works they no longer wish to keep in inventory. I only wish
all the other publishers had had such insight!
--
David H. Bailey
[EMAIL PROTECTED]
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