You Might Do Not Have to Use Files

by on June 14, 2010 · 9 comments

The grandly-named Public Domain Archive, evidently a production of Osaka-based Digirock, Inc., offers a few MP3s of classical music and historical speeches. Thanks to a suggestion from Tyler Cowen, I’m enjoying a 1942 recording of Beethoven’s 9th even as I type. Am I breaking the law in so doing? The copyright notice posted on the Public Domain Archive, while quite charming, hardly reassures:

To the People
In japan, All files open to the public on this site are certainly lawful.
But, if you do not live in Japan, You might do not have to use files.
You should check the law of your country.

As proves too often true for works, like this 1942 recording, that fall under the aegis of the 1909 Copyright Act, it is not easy to figure out if the underylying work enjoys any claim to protection under U.S. law. Perhaps, after all, it was not published with the proper formalities, here, and thus fell into the public domain.

In this case, though, it looks like we can dodge those complications. U.S. copyright law affords exclusive rights only to copying, creation of derivative works, public distribution, public performance, and public display. See 17 USC § 106. So long as I listen to a MP3 solely via streaming, without saving a copy, it is hard to see how I’ve violated any of those rights. Perhaps Digirock, Inc. has violated U.S. law by offering me the MP3, but that is no concern of mine (and probably not much of a concern to Digirock, Inc.).

That legal scenario suggests an interesting conclusion: an offshore copyright-free zone—one set up by intellectual pirates or in a stubbornly independent country—might give U.S. residents ample, free, and legal access to all sorts of copyrighted works—even ones protected under U.S. law.

[Crossposted at Agoraphilia and The Technology Liberation Front.]

  • Jardinero1

    Sounds like the plot to a Neal Stephenson novel. You could call it Cryptocopyrighticon.

  • Tom W. Bell

    And if the novel infringed on U.S. copyrights, you could offer it as a streaming recorded book from overseas from some copypirate haven!

  • Brenner434

    Works do not need to be published with formalities to be protected, merely “fixed”. There is no public performance right in an analog sound recording, though that is the subject of legislation to award fees based on radio play. Is downloading and listening to a recording a public performance?

  • Tom W. Bell

    Brenner: Under the 1909 Act, fixation alone did not suffice; many formalities applied. You're right about the public performance of analog sound recordings (I'm not sure what you mean by “legislation to award fees”), but a streaming MP3 file probably qualifies as a digital audio transmission under 106(6). Downloading and listening would not ordinarily be a public performance.

  • Brenner434

    the 1976 Copyright Act amended the 1909 Act in regards to eliminating formalities. So putting (c)/year is simply no longer necessary.

    As to the current leg fight, performers and composers have a coalition to end analog radio stations' royalty free use of music; the NAB is fighting this issue vigorously on behalf of its radio membership.

  • Tom W. Bell

    True with regard to works created after the effective date of the '76 Act, Brenner; not so with regard to works created under the 1909 Act. If, for instance, Walt Disney failed to attach a proper notice when he first published Steamboat Willie, it fell into the public domain regardless of the notice provisions of the '76 Act. And, indeed, that seems to be the case. See my post of some months ago on that count.

  • http://www.worldofwatches.com Alisha

    Great blog post thanks for sharing…

  • http://enigmafoundry.wordpress.com eee_eff

    Silly Adam, there already is such an entity…it is called Pirate Bay…

  • http://enigmafoundry.wordpress.com eee_eff

    Silly Adam, there already is such an entity…it is called Pirate Bay…

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