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Feature - About the Net
Oh Where Oh Where Have the MIDIs Gone?

By Laura Buddine
(February 14, 1999)

Has your favorite MIDI site closed up shop? Even though the music industry has focused its attention till now on the growing threat of MP3 audio on the Net cutting into their sales, publishers also are beginning to take aim at MIDI. Collect them while you can.

The Myths of Copyright and the Net

Many users of the Internet believe that anything on the Net is free for the taking. This is just fundamentally not so. Copyright and intellectual property laws apply as much to electronic creations as they do to those in a tangible form. A copyrighted picture on the Net is every bit as protected by law as it is when it is published in a magazine.

Some of the confusion and myths that content on the Net is "free" comes from the price that we pay to see it. Most web sites are free for the access, while many copyrighted materials in the physical world -- books, magazines, videos, artwork, music -- have a cost of access. Just because you're not required to pay to access a website, though, does not give you the right to help yourself to its contents for other uses.

And therein lies another reason for the myth of copyright and the Net: the difference between "can and "may." You can copy almost anything that's out on the Net -- by cut-and-paste, downloading if you have a computer or transloading if you don't, or linking content into a website or email by reference to its location. It's so easy that it doesn't seem like stealing. But ability does not confer right. Stealing is still stealing, whether it's hard or easy.

The Law the Way You Want It

Many honest people have also believed some of the proponents of "free on the Internet." Because of the rather loose way that the Net and Web evolved, a lot of copyrighted material had been posted before most people even became aware of the Net. Suddenly, the Net and Web expanded rapidly and became a mainstream medium, rather than just the hangout of educators and geeks.

"Everybody does it," seemed to make the use of materials on the Net okay, while the huge and ever-growing size of the content base made it difficult for content owners to track down violators and enforce copyrights. Some experienced Netizens even argued that the Net was a new type of medium where copyright and other intellectual property laws did not apply. "Cyberspace is a new area where the law is not yet defined," they argued. They interpreted the law to be the way they wanted.

For the most part, the courts have not agreed. Although there clearly are some areas where the law is still being made (keywords for search terms being a current one), the courts have generally interpreted intellectual property laws the same way for electronic media as they have for physical media. But the sheer size of the Net and the cost of bringing legal action has still made enforcement just a drop in the ocean. Added to this is the amount of content that is being created by individuals, rather than by companies with legal departments. Most infringers -- knowing or accidental -- still have been able to copy what they wanted and get away with it.

Music, Rights, and the Net

Music publishers are increasingly threatened by the Internet as a distribution method for unlicensed music -- music for which they own the rights, but for which they are not being paid.

MP3 is the biggest threat -- an encoding method that anyone with a PC can use to create, copy and distribute high-quality recordings that are small enough in data size to be sent over today's modem lines. Many PC users download MP3 to their hard disks or even make recordable CDs of them that can play in any PC. The wake-up call to the music industry came with the Rio, a Walkman-like device that consumers could use to play downloaded MP3 files.

The wake-up call came -- and the publishers woke up! Now, robot web-surfing programs called "spiders" are out crawling the Net looking for unlicensed audio in MP3 and other formats. The Harry Fox Agency, licensing arm of the National Music Publishers Association, handles the licensing of music for websites as well as for movies, compilations, and other uses, and also is taking point in the search for unlicensed recordings. Even before the Rio, a settlement of a class action between Frank Music v. Compuserve was already providing a precedent that made online services responsible for licensing the audio recordings that their users were uploading to forums under the services' control.

Not just recorded audio is at risk. Publishers have become increasingly irritated at the posting of copyrighted lyrics, and a number of major lyric archives have closed rather than fight a losing battle in court. Copyrighted music lyrics belong to their composers or to their publishers, and they are fighting the lost sales of sheet music and lyric books.

How MIDI Fits In

MIDI isn't recorded audio -- it's essentially a "digital piano roll" that captures a performance (in real time, or a created "sequence") that can be played back through the MIDI instruments in a PC, keyboard, or a WebTV. Just as the owners of the lyrics want to eliminate the free distribution of their property, so the composers and music publishers would like compensation for the use of their songs in websites and MIDI archives.

One of the reasons that MIDI rights seem different is that they are usually amateur creations and are not just lifted from an existing recording. As a private individual, you can play any song you wish on your piano or keyboard without fear that the music police will break down your door. You can invite your friends to your party and jam away or play songs on the stereo. Many people argue that MIDI on a website is the same thing -- someone playing favorite music and sharing it with a few friends. "It's just good advertising for the music," claim some MIDI sites in their own defense.

Unfortunately, this is turning out to be some of the wishful thinking of "the law the way you want it." The difference is that web sites aren't just available to a "few friends" -- it is publishing to the world. And, although it may indeed be "free advertising," the owner of the song has the right to decide when and where they wish to advertise it. Largely, this means that more and more MIDI sites are coming under pressure to remove copyrighted songs from their sites.

What This Means to You

If you've got a small personal website with your favorite MIDI as a BGSOUND, you probably won't attract the attention of the publishers. There are just too many people out there, and right now, they are concentrating on the larger archives with lots of unlicensed pieces.

But it does mean that the MIDI, lyrics, and digitized music that you're looking for are going to become harder to find. And, if you build your website in a large public community like GeoCities or Tripod, at some point you may find that a blanket licensing agreement with the community similar to CompuServe's applies to you as well -- either costing you fees, or forcing you to remove the music.

Music in the Public Domain

There is a lot of music that is in the public domain. If it was written before 1923 (75 years before 1998), the music and lyrics themselves are no longer covered by copyright. If your taste runs to classical or folk songs, you'll still have lots of choices that aren't covered by copyrights.

You should note that copyrights do apply to the musical performances or MIDI sequences themselves, so you can't just help yourself to a recording of Pavarotti, just because the song that he's singing is out of copyright. But many MIDI players sequence classical and folk song pieces and upload them to archives specifically for your use. Check the copyright notices on the site, or ask for permission if you have a question, and you'll certainly be OK.

Unfortunately for many of us who had been waiting for 1999 and the 1924 songs to come free, the extensions to the copyright law passed last year have added an extra 20 years to the copyright term for older intellectual property that was about to come into the public domain. It was a win for Disney and many of the big publishers who pushed for the extension, but a loss to the rest of us. The extension affects all copyrighted materials, not just music, and the director of Project Gutenberg, a massive digital archive of literature, estimates that it may prevent hundreds of thousands of books from becoming available free on the Net as they entered the public domain.

Music copyrights are frustrating, too, because we hear that song running through our heads -- shouldn't we have the right to put something we whistle on our own websites? Music is a powerful shortcut to the emotions, and just a few bars of a favorite song can capture a mood or access a flood of memories. Unlike with pictures, we can't easily create something ourselves that brings the same images to mind (at least, as George Harrison and others have discovered, not without violating the original's copyrights.)

There's not really a happy ending to this story yet. More and more MIDI and lyric sites will be shut down. "Robots" crawling the net will become more and more sophisticated at hunting out copyright violations. There will be less Net broadcasting as some of the terms in the new copyright extensions require extra royalties from radio stations broadcasting music on the Net.

Eventually, we're likely to some authorizations of MIDI -- perhaps some licensed MIDI archives to which people can subscribe (and pay a small royalty), or even possible ways of licensing mood music for pesonal non-commercial websites for a smaller fee (right now, websites require a synchronization license like movies, TV and computer software.) This may happen purely out of practicality -- the publishers will never be able to stamp out the dissemination of MIDI entirely, and too much control could even cause a backlash against some music publishers.

But for now, the tide is moving in the other direction. Collect them while you can.

For More Information

We've published a series of "Law and the Net" articles in Net4TV Voice. If you've missed them, here are the links:

Copyright Basics. What's copyrighted? What's not? How do you know what you can use and what will get you a nasty letter -- or more?

Dangerous Ground. Where you're likely to get into copyright trouble is when you try to push the edge. This article explains how to stay away from the dangerous ground.

Freedom of Speech. Can what you say and see online be censored? Yes and no -- this article explains your rights, the non-protected forms of speech, and the limitations that service providers can impose.

Privacy. Data is being collected on you, and you have very little say as to who's doing it and how it's used.

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