Some Initial Thoughts
In February of 1999, many Midi sites buzzed with talk of a $60 million lawsuit against an individual site owner by Trycho Music International, a Commercial MIDI Site. The individual's site had apparently posted at least one midi copyrighted by TMI. Since most midi sites are run by individuals as hobbies, fear accompanied the anger that swept through the midi sites. Some people claimed that the FBI is now tracking e-mail and traffic on midi sites; at least one person reported that the FBI had confiscated computer equipment. Many site owners simply decided to close down, either permanently or until the situation is clarified. The fear is understandable, especially since some people have claimed that lawsuits can be based on midi files which are not recognizably copyrighted. But as others have noted the elimination of the hobby sites is precisely what the commercial sites desire.
As I understand the situation, midis have been "sequenced" as a hobby for years, with many "sequencers" simply placing their work in the public domain. If it were not for the wide appeal of the hobby, there would probably be no commercial midi-market in the first place. There are at least three questions involved here:
1. Who owns the rights to the musical score? (And is a midi version an infringement of those rights?)From what I have seen thus far, this question is not the primary one underlying the actual or threatened lawsuits, but it is a good question. I would assume, for example, that the score of the Beatles' "Hey Jude" is copyrighted. Not being a lawyer, I do not know all the implications of this, but I am sure that it means that no one can sell it, or probably perform it without violating the copyright. Apparently, there are questions about whether or not a midi should be considered a performance. I will leave that one for the lawyers, but I will suggest that many of the midis I have heard are closer to parodies than to true renditions. Parodies are legal, and thus someone must decide (in each case?) what is and what is not a parody.
If the owners of the rights to musical scores do claim that midis infringe those rights, it may be the end of all midis based on music produced during the last 75 years.Someone claimed that ASCAP and BMI want a minimum of $600 for rights of performance (assuming that midis are determined to be performances). Hobbyists clearly would not be able to afford that so midi sequencing as a hobby would suffer tremendously. Someone else said that performance rights are normally about $.071 per song per performance. That, however, raises additional complex questions. A radio performance may reach thousands, in some cases millions of listerners. If a web performace is considered to be the inclusion of a midi on a page, then a site that includes three midi files would owe $0.213, less than the price of the stamp and check that would be needed to pay the fee. Someone suggested that on the net, every hit on the midi would be considered a performance. Who would keep track of this is anyone's guess. I've been working on my web sites for two years, and I still can't follow the hits to individual pages, much less to individal files. Midi sequencing of original scores would remain, but it too would decline. Most fans are attracted to the midi versions of popular songs first and only later do some fans gain an appreciation of scores created directly as midi sequences.
A quick look at commercial sites, moreover, shows that they are primarily selling midis of popular music. It is possible that the companies that sell midis can afford a $600 licensing fee per song, or, in some cases, the companies may already own the rights. I doubt, however, that any company will find it profitable to pay even $50 for the midi rights to any musical score, much less $600. [See Question # 3.] Because midis of popular music have been shared on the net for years without the threat of a lawsuit (that I know of) from the owners of the musical scores, I don't see how the owners of the scores could win money in any lawsuit. With a widespread tradition on the side of the midi hobbyists, the American way seems to me that the owners of the rights to the scores would now have to get and widely publicize cease and desist orders before they could win any lawsuit. Otherwise, with thousands of U.S. citizens having midi files on their web sites, a serious lawsuit against any one or few of them, based only on a claim to the score, would be totally unjust.
2. Who owns the rights to the midi sequence?As I understand it, a midi is not simply a recording of someone's performance. A person (called a "sequencer") has to use a computer program and the musical score to create a midi "sequence." Some of these sequencers, including commercial ones, claim the copyright to their sequences. Personally, I think it is totally fair that they should do so. The problem is HOW CAN THEY DO IT? I have wondered about that for a long time. I have never seen a midi player that shows text or copyright information. (Unlike, for example, the players for Real Audio.)
I have seen midi files transferred in zipped format, with a text file included that identifies the sequencer, the equipment used, the date, some other stuff I don't understand, and an indication that the file is either copyrighted, or, more common, placed in public domain. Being the skeptic that I am, I wondered if these text files couldn't be counterfeited, but they seem to be accepted as valid.
In reading about the current problem, I learned that midi files can have text embedded in them and that that text can be read with a program such as Textfinder from A1Soft. I tried Textfinder on the thousand or so midi files that I have downloaded, and I found some that included copyright information. It is, in other words, possible for a sequencer, commercial or other, to embed copyright information within the midi file, and for anyone who downloads the files to check for such information. [Textfinder currently sells for $15. Perhaps someone will make available a public domain program to serve this purpose, but until I find one, I consider the midis on my sites worth the $15 it will cost me to check them out.] Two of the files I had on my sites were copyrighted, one by a company, and one by a person.. I have removed them and will, from now on, not use any file which includes readable copyright information unless I have permission from the copyright holder.
Given the vast number of truly public domain midi sequences available on the net, I don't see how anyone can currently claim copyright infringement for sequencing unless -- since it is possible -- readable copyright information is included in the file. It may be possible to remove this information before reposting a file to the web. Others might then download the file, believe it is in the public domain, and use it as such. Under the current circumstances, I don't see why or how such innocent users should be liable for copyright infringement. (As one irate midi fan noted, how do we know that some of the commercial companies are not simply taking public domain files and adding copyright information?)
In addition to learning about the readable information in midi files, I learned about watermarks. I don't understand how it is done, but one of my technical colleagues explained that it is possible to "flip" bits in a file so as to create a recognizable pattern without affecting the performance of the file. One angry midi fan claimed that companies were threatening to sue based simply on watermarks-- and that it is impossible for the collectors to recognize the watermarks. If companies currently try that, our courts should make the companies pay BIG damages to those sued. Otherwise we should all be living in China. As noted previously, the making and the collecting of midis began as a hobby. If companies want to get in on the hobby and charge for THEIR midis, that's fine, but they should not be allowed to DESTROY the FREE interchange between hobbyist sequencers and hobbyist collectors.
Watermarks may, however, be a way for the companies to protect their midi sequences. If I understand how watermarks work, companies would not want to reveal the patterns. But companies obviously have programs for identifying their own watermarks. It should, therefore, be possible to set up a web site at one central neutral location (The Library of Congress? ASCAP?) where anyone could test midi files for watermarks. Having downloaded a midi file from a web site, anyone would be able to upload it to this site, and the site would inform them if the file contained a watermark. If they then posted it on their site and got caught, they could, perhaps, be charged with copyright violation. (See Question # 3.)
The need for a central, neutral site should be obvious. It would be absurd to expect netizens to travel the entire web looking for a possible copyright holder of a midi file. If companies (or individuals) want to enforce copyrights on their sequences in an ocean of public domain sequences, it would seem to be the responsibility of the companies to make their midis identifiable. And without a neutral site, a company could always be accused of rigging the test such that all submitted midis were claimed as theirs.
Even at the neutral site there would be questions. If it is possible and economically feasible, every midi sequence should have its own distinct watermark. Suppose, for example, that I had a midi sequence of "Hey Jude." I should be able to rename the file to, for example, autumn.mid and then submit it. If the file is copyrighted and watermarked, the web site should be able to come back to me with the information that this is a sequence of "Hey Jude" and that it is copyrighted by so and so. If it is not feasible to watermark every sequence separately, then the site should inform me of the copyright owner and provide direct access to a list of files copyrighted by that company or person. If "Hey Jude" is not on that list, I would know that something is wrong.
The procedures explained above may appear cumbersome,
but without them -- or something like them -- the net will no longer be
the free information highway that it is supposed to be. Thousands of individuals
contribute free midi files, graphics files, text files, computer programs
for web sites etc.If companies can eliminate free midi files, then they
will also be able to eliminate the free graphics sites (including background
sets, etc.), the free poetry and magazine sites, the free programming sites
(java and cgi scripts), etc. This will hurt not only the people who download
these things, but also the thousands of people who take such pride in creating
and giving them away. And this still leaves us with the question of the
commercial value of a midi file.
3. What is the commercial value of a midi file?If people purchase midi files from a company, can they use them on their web sites? If they do, the current debate suggests that they may be subject to lawsuits.If they legally can't, how many people would want them? Although adding to one's private collection is fun, the primary appeal of midis is in sharing them.
A quick tour of a commercial midi site indicated that the company wants from two to five dollars per midi sequence (i.e., per song). At the upper end, that is more per song than the cost per song -- done by popular artists, usually with words -- on commercial CDs and tapes. How many people would want to pay for midi versions when they can buy CDs and play them on their computers? For most people, midi files might be worth two to five dollars, but only if they could be used on web sites.
The current scare, however, is that anyone who is using a copyrighted midi sequence on a web site may be subject to a multimillion dollar lawsuit. If that is, in fact, the position of the companies selling midis, then they are killing their own business. If that is not their position, then how do they intend to keep track of who did and who did not legally purchase their copyrighted sequences? Once a midi is on the web, anyone can copy it -- and some people will, even if it is illegal. Does that mean that legal owners will randomly be subject to having to show proof of purchase? How will they do so? Will the police be sent to their doors to see if they have a legal CD or disk? (Midi files that are purchased electronically -- downloaded rather than being on disk or CD -- are subject to still more questions. Disks, records, etc. can be resold, in some cases for much more than their original cost. How can a person legally give away or resell a midi file that was simply downloaded?)
Towards Reasonable Resolutions?
Among the numerous quesitons that have to be answered, two stand out as having critical, primary importance:
1. How can copyrighted midi sequences be used on the web?
2. If owners of popular contemporary music intend to enforce copy rights, how can that music be made affordably available to hobbyist midi sequencers?
A reasonable answer to the first question would be to distinguish midi
websites from websites that use midis. Midi websites exist to collect and
share midi files; websites that use midis (like this one) simply want to
offer visitors a musical background during the time of their visit. Midi
websites should not have any verifiably copyrighted (as defined above)
midi files unless they have express permission of the copyright holders.
(They will not, of course, get such permission from the companies, but
they could get it from the hobbyist sequencers.) Websites that use midis
should be able to use a limited number of copyrighted midis without fear
of harrassment or lawsuits.
--Ed Vavra, February 27, 1999
Maria Teresa of Spain
adapted from Mark Harden's WWW Artchive