MIDI Song File Distribution and Computer Bulletin Boards

As published in Keyboard Magazine, June 1993.
Copyright © 1993 Simon Higgs. All rights reserved.

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?

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 Unicorn's Performer 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 fee.

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. They are:

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, specifically:

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 for this:

they don't have the hardware to replay a MIDI Song File.
legislation 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 recognize them,
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 provable losses.

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.

The Copyright 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.

Another question 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 rights.

Because legislation 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."

Perry Leopold, 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.

"Unfortunately, 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 one."

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 publishers.

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:

ASCAP - (213) 883-1000
BMI - (310) 659-9109
Copyright Management, 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