Fair Use In Cyber Space: The Night The Music Died

Joshua Kaufman © 1999

January 14, 1999 will also be remembered as, "the night the music died." On that day in Basel, Switzerland, the police raided and seized International Lyrics Server's computers shutting down their web site (www.lyrics.ch/). International Lyric Server operated a web site from which visitors were allowed to download, free of charge, the lyrics to more than 114,500 popular songs. The site received approximately one million hits per day from approximately one hundred thousand visitors. Pascal Debries who founded the lyric site in 1997 characterized it as a "labor of love." The National Music Publishers' Association ("NMPA") responded with "stop in the name of love." Unfortunately for International Lyric Server, they never obtained permission from the copyright owners of these songs to copy, post and/or distribute the lyrics. Suit was brought against them by the U.S. based NMPA who were joined by the Harry Fox Agency which is the NMPA's licensing agent. The music industry representatives believe that this site infringes on its members' copyrights. The International Lyrics Server owners as well as their hundreds of thousands of customers believed that the free distribution of the lyrics was a fair use (or should have been a fair use). International Lyrics Server thought that, since they were not receiving funds from individuals who were down loading the music, and they believed that the downloads were for personal use, no license from the copyright owners was necessary. However, International Lyrics Server did accept paid advertising on the site.

This dispute represents a classic confrontation between copyright owners and the "knowledge is free" contingent of cyber space users. As a result of the Internet's roots and the nature of those who were its originator on one side of the argument we find a large contingency that resides in cyber space and around the physical world, which believe knowledge and information should be free. They feel that attempts to exercise proprietary rights over information that is posted on the net is an anathema to the spirit of the net and morally corrupt. On the other side, those who spent blood, sweat, tears and many dollars to create that very same information want to be able to recoup their investment and profit from their labors. As with most issues that arise on the web, the legal solution lies in traditional intellectual property law. While we may be required to take a look at the Internet issues without our traditional blinders and be required to be creative, sometimes we are even forced to make a round peg fit into an oval hole, but by and large the existing body of law provides the solutions we are looking for.

In this instance, when all the verbiage regarding the free use of information in cyber space is removed, the analysis comes down to a simple fair use issue. Was the use by International Lyric Server of copyright lyrics on its web site a fair use or an infringement? Factually, there was no question as to copying of the lyrics to the web site and the encouraging of people to download them. Thus, International Lyric Sever was involved in the copying and distribution of the lyrics. It was also conceded that this was done without permission of the copyright owners. Therefore at least two of the exclusive rights of copyright owners set out in Section 106 of the U.S. Copyright Law and the equivalent in Swiss law were violated.

When a fair use analysis is made, the copyright law provides some specific examples of fair use and guidelines for all other situations. The types of copying that are clearly fair use are enumerate: criticism, comment, news reporting, teaching in a classroom situation, scholarship and research. If the challenged use is not one of these specifics, we look to the: 1) purpose and character of the use, including whether such use is of a commercial nature or is not for non-profit educational purposes, 2) to 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 the value of the copyrighted work.

When we apply these four criteria to the International Lyric Server case, it is not even a close call. Their use is clearly not a fair use under U.S. law (and apparently not under Swiss law). The fair use analysis would provide that 1) the purpose and the nature of the use was likely to be held, of a commercial nature. Even though the web site was not charging individuals specifically for the right to download, they were charging for advertising and the site had other commercial features, 2) the nature of the copyrighted work also goes against the finding of fair use because the works were creative works, lyrics. The more creative the original works, the less likely a finding a fair use will be (as opposed to the repeating of facts), 3) the next criteria looks at the qualitative and quantitative aspects of the taking. In this case, the entire works were taken and that goes against a fair use claim, and 4) the fourth criteria which most courts recognize as the most important element deals with the impact on the potential market of the copyrighted work. In this instance, there was definitely a detrimental impact on the ability of the copyrighted owners to sell copies of their lyrics. Perhaps the vast majority of the millions of people who visited the website and downloaded lyrics would not have gone to a store and bought lyric sheets or songbooks. However, a significant number of individuals, in all likelihood, did go to the website and download lyrics instead of going to the music store and buying songbooks and lyric sheets. As such, the website would clearly be affecting in a negative manner the potential market for the works and therefore, decreasing their value. If you visit www.lyric.ch/ today you will find the site open, but bereft of lyrics. However, you will find links to other lyric sites. So if you still absolutely need to know the lyrics to Louie, Louie or you are not sure what happens when the moon is in the seven house and Jupiter aligns with Mars, you could still find out at other web sites (www.summer.com.br/^pfilho/html/top40/index.html), at least until, as the Beach Boys sang, they "shut 'em down."