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L P Music License

Today there is a running battle over music and who has what rights to it.  In opposite corners of the ring we have the record companies and the music buying public.

The record companies, and particularly their umbrella organization, the Recording Industries Association of America, have made themselves very unpopular with their legal efforts to “stop music piracy”. I don’t need to go into detail about this: it has been all over the news.  I personally do not have a lot of sympathy for these people that I see as robber barons, but I believe that the rights of songwriters and performers to be paid fairly for their creative work should be protected.

The legal rights of creators of “intellectual property” such as books, music, movies, etc. are defined in US Copyright law. The latest overhaul of that law is the Digital Millennium Copyright Act, which is intended to better define the “gray areas” in copyright that were created by new methods of electronic distribution, such as the Internet. I will not deal with the conflict and controversy about the DMCA here.  I am only interested in the practical aspects of what our rights, both as creators and consumers, are. I am further focusing on music, especially recordings of original music.

If you look at it closely, the term “copyright” is almost self-explanatory.  We are talking about the right to copy an existing “work”.  I have written and recorded some songs over the years.  I entirely own the songs, and the original recordings of those songs.  The second each song was recorded, it was officially protected by copyright law, and I became the owner of all of the rights for use and copying of the songs and recordings.  I have the right to make copies.  I have the right to create “derivative works”, such as, say, dance remixes of the songs and recordings. I can sell those rights to someone else, either “exclusively”, meaning ONLY the buyer has those rights, or “non-exclusively”, meaning that the buyer has been permitted some rights, but I still OWN the work and all rights to it.

Makers of computer software are very careful about the rights to their work. In most cases, in order to install and use their software the user has to agree to specific terms for its use, which are spelled out in the End User License Agreement. If you have a computer (probably, since you are reading this), you have agreed to a number of EULAs for various programs that you use, including the browser that you are reading these words from.  As far as I know, no record company includes a printed EULA with their CDs, but they are still very specific about what you are allowed to do with that music: listen to the CD you bought.  Period. You are not allowed to sell or give away copies of the music, or even to make copies for your own use (at least, that’s what the RIAA thinks).

In the software world, there are some competing copyright models.  The best known concept for this, perhaps, is Open Source Software, which is often distributed under the terms of the GNU General Public License.  The idea of this model is not to prevent individual users from copying and distributing the work, but to prevent any other person or company from claiming sole rights and then selling the work. Note that the GPL does not replace copyright law, but rather allows programmers to shape how they wish to use (and to some extent, share) their copyright privileges.

The music world is becoming aware of a similar idea that some call Open Music.  Some interesting alternative music licenses have been developed and made available by Creative Commons.  In general, these licenses are either in the form of “You can do anything you want with this, as long as you give credit to the author” or essentially the same thing with the added condition “but you can’t make money from it”.  An example of a “record label” that uses the latter form of this license is Magnatune.  I have visited their site a number of times, as much to learn about them as to check out their music.

I suspect that, for at least some independent music creators, the “open” license model is a bit too radical for comfort, yet the “Big Record Industry” model seems ugly and unfriendly.  I certainly feel this way, and after thinking about it, I would like to propose a different licensing model, which I would call the Limited Personal Music License.  The model for its terms was inspired by a form of EULA once used by Borland for some of its products. Years ago they offered a spreadsheet program called Quattro Pro, and they described the license terms for the program as “like a book”. 

If you have a book, you can use it just about anywhere, at any time. You can take it from place to place.  You can loan it out to a friend.  You can share it with anyone, but only one person can read it at a time.  Back when all our music was on vinyl, my friends and I used to borrow records from each other, and return them when we were done. As with a book, they could only be used in one place at a time, and this was OK. 

When cassettes became popular, a lot of people started taping their albums so that they could play them in the car or at the beach.  The record companies absolutely had fits about this, and tried to get personal taping of records outlawed.  Fortunately for us, Congress turned them down flat. Unfortunately for the record companies, it became all too common for people to buy a record, then tape several copies for their friends.  The tapers may not have been making money this way, but the record companies definitely lost money.  In Japan this got so bad that they decided to charge about $30 for an LP, on the assumption that every record sold represented about half a dozen “free” taped copies.

Copying a recording for personal use fell under “fair use” provisions of copyright law back then, but in recent years record companies and other big businesses, like movie studios, have worked hard to have the fair use provisions gutted from copyright law.

As I see it, then, the Limited Personal Music License is a way to restore “fair use” permissions on an individual basis.  Suppose, for example, that I sell my music online as paid file downloads.  Very likely the buyer will listen to it on his computer, which of course is OK. If he wants to burn a CD of it for listening on his home stereo or portable CD player, that’s OK. Making a cassette copy for listening in the car is also OK. What is NOT OK is for the buyer to make copies to give to his friends, or to email or otherwise send file copies for other people to use, because this would deprive me of the opportunity to make another sale. I should be the only person who can decide what gets given away as a “free sample”.

Any music that I sell will be under the terms of the LPML. Music that I give away for free may be shared freely, but it may NOT be sold.  I do not have a proper “legalese” form for the Limited Personal Music License, but I would welcome a donation of same to the cause by any friendly lawyer who might read this. Anyone who wishes to license their music using these terms is welcome to the LPML idea, but the consequences of its use will be entirely the responsibility of the user.  I accept no liability for any use or misuse of the “Limited Personal Music License” concept.

      Puzzler  January 18, 2005

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