Some Answers Are Not So Hard In The Copyright Debate. Or Are They?

One of my favorite sports columnists is Joe Posnanski who writes for Sports Illustrated and periodically, for the Kansas City Star.  But, as insightful and funny as he is about sports and life, he’s not the first place to turn for intellectual property issues.  I don’t think Posnanski would disagree.

So why am I reading a copyright article written by one of my favorite technology columnists, David Pogue?  I guess that I can’t help myself.

One of Pogue’s posts, “No Easy Answers In The Copyright Debate” highlights the never-ending debate about whether it is okay to download someone’s creative work without their permission.  The blog post described a song writer’s efforts to stop people from downloading his sheet music for free.

The song writer, Jason Robert Brown, was frustrated by the thousands of people who were trading his work for free when he was trying to make his living by selling the sheet music. His correspondence with one teenager who had a different view is not only an interesting read in that it highlights many of the arguments made by both sides of the debate, but also sheds some light on the cultural issues as well.  A post by Digital Society provides another view supporting the song writer.  But, Pogue’s post raises one argument that I had not heard before.

In the post, he quotes a classical pianist who justifies his downloading of sheet music without permission as an effort to preserve works that would otherwise be lost to the ages of time.  Of course, anyone could justify illegal downloading on this basis.  Nobody would have to honor a copyright if all that he had to say was that his intentions were pure and he was simply acting as his own Library of Congress.

Yet, Pogue does end the post with an interesting question:  Is digital piracy justified if it is difficult or impossible to figure out if the item is for sale?  I think another way of asking the question is  should you be able to use a work if the copyright owner cannot be found?

I don’t think one gets to use a work for free just because it is difficult or even impossible to find the artist or copyright owner of the work.  It is frustrating, however, when a work does not identify the copyright owner.  Unfortunately, after several attempts, Congress has not been able to agree on Orphan Works legislation — resolving how someone can use a copyrighted work when its owner cannot be realistically determined.

The failure of Congress to act doesn’t justify violating a copyright, but does this debate suggest the need to revisit passing Orphan Works legislation?

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About Dave Rein

Dave Rein focuses on and will continue to focus on copyright, trademark and patent litigation until the National Geographic adds him to its staff of photographers. In addition to counseling and litigating on behalf of the firm’s clients, he also helps clients through the Kansas City Volunteer Lawyers and Accountants for the Arts where he also serves as a board member. Prior to representing clients, Dave clerked for a federal district court judge who kindly provided invaluable advice and mentorship
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