MIDI Song File Distribution
and Computer Bulletin Boards
As published in
Keyboard, June 1993.
With the advent of
the home computer, music software, and the MIDI interface, it's now possible
to write music and store it electronically, without ever putting pen
to paper. Unfortunately, with every advance in technology, there are
new obstacles to overcome. Today we find another one that directly affects
every songwriter & publisher's paycheck. Are we about to lose another
piece of the pie?
Copyright © 1993 Simon Higgs. All Rights Reserved.
At this point we
welcome our new writing companion, the 'MIDI Song File'. For those
who don't know, a MIDI File is a computer file containing the instructions
on how to play a particular piece of music. It contains all the notes
and performance information (tempo, volume, etc.), and is internationally
recognized by every new sequencer and notation program for Macintosh,
Atari, and IBM computers. Sequencers such as Steinberg's
Cubase, Opcode's Vision, Mark Of The
and notation programs such as Coda Finale and Passport Encore all read
and write MIDI Song Files. In fact the files can be transferred from
program to program and from computer platform to computer platform
using floppy disks - or over a telephone line via modem.
Many artists today
use modems and electronic mail to pass information on quickly and effectively
(which is essential with modern touring logistics). This more often
than not means using some sort of electronic Bulletin Board Service
(BBS) to store the message until the person that's receiving the
message logs on to collect it. Many of these BBSs also make available
certain types of software (shareware & freeware) for you to download.
Users of the BBSs can also upload software for other users to enjoy,
and it is here that the law that ultimately covers the copyright
of your songs gets... er... stretched, to say the very least.
Imagine this scenario:
You are a songwriter who has spent ten years or more trying to carve
out a career, and you've just written a song that's spent five weeks
in the Billboard Top 10. Every bar band from Key West to Anchorage
is covering it, and you are very, very pleased indeed. (The music
could have been written for other uses; for instance, computer games
now allow the soundtrack to be played back via the computer's MIDI
interface. Sierra Online, a computer game manufacturer, has had game
soundtracks specially written by such artists as Jan Hammer). Your
first royalty check has arrived and you're about to celebrate. You
log on to your computer service (Compuserve, GEnie, Prodigy,
America On Line, etc.), and you see
that someone has made a MIDI Song File of your song, and has uploaded
it so any Tom, Dick, or Harry can download it. You even download a copy
out of curiosity. As they don't charge you any extra to download it,
you assume that you'll get paid royalties out of the online flat-rate
Wrong! The MIDI
File of your song is being given away (yes - published electronically
for free), and no royalties are being collected or distributed.
- The burning question now is - is this legal?
- The answer is most definitely - NO.
First, let's look
at what exactly is copyrighted. The Copyright Law definitely applies
to your song, and so it has the full protection of the Copyright Law.
(If the song is being published, you must register it with the Copyright
Office. Unpublished materials are protected by the copyright law
whether or not they are registered). As you can see below, there are
five basic separate rights, among others, embodied in copyright protection.
- The Reproduction
Right: (the right to make copies)
- The Distribution
Right: (the right to distribute copies)
- The Adaption
Right: (the right to prepare derivative works, i.e. re-arrangements)
- The Performance
Right: (the right to performthe music)
- The Display
Right: (the right to publicly display)
If I sequence my
version of your song, and then upload it to a BBS, I've violated several
of those rights, and created a situation where others may be violated,
- By recording
the sequence, I've violated the reproduction right.
- By reducing
the fully-orchestrated song to a single piano part, I've violated
the adaptation right (i.e. re-arrangement right).
- By uploading
my sequence to a BBS, I've violated the distribution right.
- If others download
and play back the sequence, they've violated the performance right.
- If others display
the work on their terminal, or via other means, they may be violating
the display right (though there is some question about this).
But, and here's
the rub, according to the Copyright Office, the musical composition
has to be in a recognizable fixed form (i.e. sheet music or audio cassette,
phonograph, or compact disc). Even though you own the copyright in
the composition, if it exists solely as a MIDI File, it can't be registered,
because electronic music storage methods - this includes MIDI Song
Files - will not at this time be accepted at the Copyright Office. There are two reasons
- they don't have
the hardware to replay a MIDI Song File.
has not been passed that covers specifically the registration of electronic
music/MIDI Song Files.
What's this about
legislation? The law covers my song, doesn't it? Well, although you
are the copyright owner of your song, and while the existing Copyright
Law may be worded broadly enough to cover future publishing media, specific
legislation covering the MIDI Song File has not yet been passed. Legislation
may be required because:
- The Copyright
Office has not been able (by it's own admission) to keep up with
technology; it has no way of playing back MIDI Files (you can't send
in your song on a DAT tape yet either), and so officially it can't
- The Copyright
Office is a registration-only service. They do not have the power
to enforce copyright legislation. That's where the courts comes in
to play: An infringed party has to take action in the courts.
- The Federal Justice
Dept. won't take independant action until proof that a federal crime
has been committed. For the FBI to investigate there have to be substantial
The good news is
that once a case is tried (& won) in Federal Court, the outcome will
legally prevent BBSs and computer services from distributing copyrighted
material unless they can somehow provide royalty payments to the rightful
copyright owner. What happens at this point depends on what the court
rules. If the court decides that MIDI Files are covered by the compulsory
license provisions of the law, then BBSs would presumably be able to
legally distribute the files as long as they pay the statutory mechanical
license fee. However, if the court determines that distribution of
MIDI Files is a form of publication, then the BBSs would have no right
to distribute the files at all unless they negotiate a royalty with
the copyright owner or publisher, and get written permission for each
piece of music that they want to distribute.
Office does recognize (in principle) that, as the MIDI File contains
all the notes and playback information, copying it should be treated
in a similar manner to sheet music photocopying (they have large signs
there saying "Photocopying sheet music is illegal"). In fact, programs
like Cubase Score and Finale allow you to print out, in laser quality,
the score of any MIDI File. Also, the Copyright
Office has only just begun to become aware of the possible abuses
open to multimedia, and digital audio recordings. They are interested
to hear from people that are involved directly with the technology,
so they can better understand it and protect original work created
or transferred on it. One area that they do need information on is
the possible methods of transfer (copying) from one medium to another.
Sample questions: Can a MIDI File or electronic music file, be made
directly from an analog audio recording (Yes, using pitch-to-MIDI converters,
but only in the case of extremely simple material; check back in 2
years) Can a MIDI File be created by scanning sheet music (Yes. Musitek's
Midiscan shown recently at the NAMM Show will do this) And so on.
You get the idea. Part of the problem they face is due to the speed
of change in the new technology. The Serial Copy Protection on DAT,
and now the Blank Tape Levy, happened partly because the Copyright
Office is trying to do the
right thing, and lobbyists and legislators there are not necessarily
experts in the technology.
Some people have
also questioned how far the Copyright Law goes in regard to new arrangements
made using existing MIDI Files. Yes, it is possible to change the song
beyond all recognition and derive an entirely new work, but there are
already precedents set to cover new 'sheet music' arrangements and sampling
that will also apply to MIDI Files. This does not mean that new legislation
is not needed. It is.
posed by this situation is, "Who is responsible for the collection
of royalties?" ASCAP & BMI only collect "performance" royalties from
radio, television, and the like. Copyright Management Inc., a full
service copyright agency, and The Harry Fox Agency collect "mechanical" royalties
from CDs, cassettes, and all forms of "syncronisation" (multimedia
uses such as movies). With a multimedia presentation, consisting
of video, digital audio, and MIDI information, would the copyrighted
music require a "mechanical" license, or a "synchronisation" license?
Would a "performance"
license be needed if the use was for a commercial presentation? What
about the existing publishers who have "exclusive print rights" to
a song? If sheet music can be printed using the information contained
in the MIDI File, then additional clearance from the owners of the "exclusive
print rights" is needed in addition to the performance and synchronisation
has not yet been passed, the exact legal definition of a MIDI File isn't
all that clear. As it stores the sheet music information and the performance
data at the same time, it is quite possible that an entirely new licensing
arrangement (covering risk and appropriate rates) may have to be created
in order to ensure that the royalties due end up in the writer's pocket.
Let's hear what
some BBS's and computer services have to say:
Paul Tauger, the
system operator of Los Angeles-based Midium, a music-oriented BBS that's
part of the MIDI-link Network, has a typical
reaction to this situation: "I am not yet convinced that the exchange
of MIDI Song Files on BBSs violate's Copyright Law. I don't feel that
MIDI File exchanges have any commercial impact on a composer's ability
to exploit his/her work. As technology evolves, that may change. If
a BBS MIDI File exchange is ever held to be violative of copyright,
Midium and all the participating MIDI BBSs on the MIDI-link Network will promptly
cease the practice."
of The PAN Network, a dedicated music
industry computer network, says "Since the inception of the MIDI File
specification, The PAN Network has steadfastly refused to allow
members to upload MIDI Song Files to the databases unless they were
either works in the public domain, or else original compositions whose
copyright owner was the person uploading the file. It has long been
our contention that the inclusion of a MIDI Song File into a database
by anyone other than the copyright owner, or without the legal license
to do so, was a copyright infringement, and that any network that permitted
it was engaging in illegal distribution of those works.
we have been a lone voice in the wilderness. As far as I can tell, PAN
is the only network that has taken this stance. It has gone unchallenged
in the courts for so long that it seems to be accepted practice on every
other computer network throughout the world. It's worse than software
piracy - everyone knows that making copies of commercial software is
illegal, but it is still rampant. Yet where MIDI files are concerned,
it's reached the point where even professionals seem to be competely
unaware of the copyright issues. It's a very common occurance for me
to be asked by a pro "where are the song files on PAN", and when I
remind them that it would be a copyright infringement to permit access,
they are genuinely surprised to admit that they had never even given
it a thought.
"A very common
myth used when people try to argue the point is that there's so little
money involved, the publishers probably could care less. Wrong! Tens
of millions of dollars in royalties are being lost every year, and some
people are getting very wealthy on the other end. Just recently, the
sysop of a major BBS admitted to me that almost 1/2 of all the downloads
from his database are MIDI Song Files, and he is becoming very very
wealthy as a result. When I asked him if he knows that they are a copyright
infringement, he smiled and winked, as if to say "who cares".
"It seems to me
that publishers had better wake up FAST and smell the coffee on this
Now we know what
the problems we face are, what are the solutions?
Firstly, I believe
that the long term solution to this problem is not to rush out and ban
the distribution of all MIDI Files by BBSs and other computer services.
It would be unhealthy both morally and culturally, to destroy the educational
benefits that the MIDI File allows us (and the generations to come),
and it would be a mistake to place ourselves in an electronic dark age
out of ignorance. (There are many MIDI Song Files available containing
the great classical compositions that are rightfully in the public domain).
There maybe scope in the fine print of the Audio Home Recording Act
1992, to begin to address the situation, though there is a long way
to go to define and implement the additional legislation needed.
Second, each BBS
or computer service distributing MIDI Song Files must be required to
pay a license fee to be able to legally distribute MIDI Files, and
must be responsible for collecting a royalty fee for each download
of a MIDI File. (However, if the BBS refuses to comply, it can be
prosecuted, the copyrighted MIDI Files removed, and damages awarded
to the infringed copyright holders). The royalties would then be
forwarded to a collection agency. Because computers are keeping track
of the file distribution already, the audit trail should be straightforward
to implement, and it should be possible to keep an accurate record
of all MIDI Files downloaded. Alternatively, due to the fact that
the MIDI File can be duplicated any number of times, it may be necessary
to include "installs" - software
protection that would limit the number of copies that could be made
- in the master copy held on the computer services database. The computer
service could then apply for a license for distribution of up to 1000
copies at a time. Once it has distributed 1000 copies it would be no
longer possible to distribute any more without applying for a further
license. The appropriate royalties could then be distributed fairly
to the copyright holders (and not just to the statistical "best sellers" the
way ASCAP & BMI currently
work). It seems inevitable that the "print rights" to enable
the end-user to print out the score for their own personal use will
have to be included in any MIDI Song File license granted. This will
hopefully encourage existing publishers to sell "official" versions
of songs that are professionally produced. This form of music distribution
would then become an additional source of income for songwriters & their
If you have an
active ($$$) interest in all of this, then you need to to take some
action to awaken both the BBSs that have your songs available for download,
and the Federal Government, to what is potentially as hot an issue to
the 1990's as sampling was to the 1980's.
For more information:
Check out "The
Art Of Music Licensing" by Al & Bob Kohn (Prentice Hall). It covers the basics and addresses
the situation; it will need to be revised before too long as the law
is extended to cover this area.
Useful phone numbers:
- (213) 883-1000
BMI - (310) 659-9109
Inc. - (615) 327-1517
Harry Fox Agency
- (212) 370-5330
Library Of Congress,
Copyright Office, General
Info. - (202) 707-3000
Library Of Congress,
Copyright Office, Performing
Arts - (202) 707-6040
Copyright © 1993
Simon Higgs. All Rights Reserved.