The NMPA vs. Lyric Sites

Earlier this month, the National Music Publishers' Association (NMPA) announced it had sent DMCA takedown notices to a list of fifty so-called "lyric sites"demanding that they remove lyrics that are copyrighted by NMPA member publishing companies. (I've discussed the DMCA and the process of "notice and removal" in a previous post.)

The takedown notices are likely in advance of full-blown copyright infringement lawsuits against the sites, which the NMPA says have "ignored the law and profited off the songwriters’ creative works". However, unlike the infamous RIAA file-sharing lawsuits, the NMPA is saying that they are not targeting individual fan sites.

I came across a great explanation of the situation published by the Future of Music Coalition, and after reading it, began thinking about the implications of the NMPA's threats.

Lyrics are part of a song, and while many think they are separate from the music, under the law at least, they are not. What this means is that the copyright in a song covers both the musical content and the lyrical content equally, regardless of whether they are used together or alone. To reprint lyrics therefore, a license must be obtained from the rights holder.

While the question as to whether these sites needed a license is easy to answer, an interesting side note involves the website RapGenius.com. In it, lyrics are posted and then annotated by fans, providing explanations of the lyrics' meaning, as well as commentary on the song. As a result, there seems to be some question as to whether Rap Genius' offering could be considered "fair use" and not actually be illegal.

Copyright law's "fair use" provision is very tricky to navigate as it relies on subjective tests to determine whether a particular use meets certain criteria for protection. To be considered "fair use", (pursuant to 17 U.S.C. § 107 [PDF]) these factors must be considered:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

While these questions may appear straightforward, they won't be resolved in advance, and the answers won't even be definitive. As the United States Copyright Office itself states:

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Does it sound like Rap Genius passes these tests? Well, while Rap Genius may be able to successfully defend a suit because of the "purpose and character of the use", it recently received fifteen million dollars in funding, so it's unlikely that the "commercial" part of the test will be met. As a result, there is some likelihood that the site could be found guilty of infringement and forced to remove the lyrics.

The problem with determining what constitutes fair use is that the question of possible infringement doesn't get answered until somebody gets sued. This makes for difficult decisions for those wishing to use copyrighted material with the belief that their use is protected: Do they ask for permission and risk getting denied, or do they proceed and roll the dice, hoping to avoid a lawsuit? The law itself doesn't provide a clear-cut answer, and considering the cost of litigating such cases—not to mention the potential monetary damages for infringement—any decision carries significant consequences.

I'm not suggesting that it's okay to use copyrighted materials without permission. While the law makes a great deal of sense in its efforts to categorize fair use, the fact that the test takes place after the use occurs makes for very murky application. I hope that future decisions will clarify this troublesome part of the law, making it easier for everyone to determine ahead of time whether or not a use is protected. This will result in greater creative freedom, less litigation and less infringement—all good things for copyright holders, as well as those who use their works.

"Fair Use" gets a fair hearing.

I read recently read that the Electronic Frontier Foundation (EFF) and Harvard professor Lawrence Lessig are suing to prevent a rights holder from issuing a DMCA takedown notice in connection with a lecture that Lessig posted on YouTube.

Apparently, Lessig gave a talk at a Creative Commons conference that referenced the viral nature of some amateur dance videos filmed to the song "Lisztomania" by the band Phoenix. Such use falls under the "fair use" provisions of US copyright law, yet Phoenix's record company, Liberation Music, sent a takedown notice to YouTube demanding removal of the video. Lessig responded using YouTube's procedure, but Liberation Music continued to threaten legal action.

As I've written before (here, here and here), the DMCA provides for a notice-and-removal procedure that online providers and other companies must follow in order to remain "safe harbors" and be protected from infringement claims. However, the process doesn't provide for any kind of robust debate over the merits of a particular takedown notice, and therefore can too easily be used to inhibit free speech or remove materials that aren't actually infringing.

This is an important case, as it raises the question of what exactly constitutes "fair use". There is little case law on the subject and that makes it difficult to determine whether a particular use actually will infringe someone's copyright. By responding in such way, the EFF and Lessig will hopefully bring about the robust debate that needs to occur in fleshing out the concept of "fair use", thereby making a murky area of copyright law much clearer.