According to Richard Esguerra from The Electronic Frontier Foundation (EFF), a group is “doing something about this “problem. The organization “Musopen” is raising money from “philanthropists” to create high quality digital recordings of works from masters such as Beethoven and Brahms so that they can “generously” donate these recordings to the public domain so that no one will have to worry about licensing recordings of them ever again.

Does this sound nice to you? If it does, you are forgetting one thing.You are forgetting that if these recordings have some commercial value it creates a market for them which not only employs musicians, it encourages better and better recordings and orchestrations that benefit all of society. Destroy their commercial value, and you destroy a lot more than you realize.

Is it that offensive to these people that musicians should get paid for mastering their chosen instruments and making the sacrifices necessary to become a professional? Or is it crazy if someone gets a return on an investment to undertake the enormous task of recording a 100 plus person orchestra? Carried to it’s logical conclusion, someday all classical recordings will be in the public domain so this faction of the recording industry can just shut down. Now you can tell your kids not to waste time learning the cello, because there’s no way to earn anything from the sacrifice, so don’t go to orchestra practice. It’s a waste of time.

Esguerra laments that everyone can’t freely do things like use classical music in films because it has to be licensed. So we should let people make films and sell them and keep all the money instead of giving some to the musicians and encouraging their pursuit of these arts? Esguerra writes, “It’s too bad such seminal, cultural works have been effectively buried by copyright interests — despite their age, ubiquity, and importance.”

Can you believe this? Why not hire sound alikes to record all the works of the Buena Vista Social Club so we can get around paying those suckers. We can avoid paying at least 1/2 of what we used to have to pay to license their works. They’re seminal, why not? Esguerra actually calls this a “creative solution” to the problem of having to pay for the rights these musicians have obtained by sweat and talent. Does he also agree that waiting until midnight with a brick in your hand is a “creative solution” to the problem of having to pay for a plasma TV as well?

When my late Uncle Frank used to hear stuff like this he used to blurt out, “That’s just plain old fashioned communism!” That may be naive but it’s all I can think of to explain the lunacy. My band played in communist East Germany once. I see a bland world of music coming if those ideas make a comeback. I still have nightmares about the “boiled wheat” they served us to celebrate our musical triumphs there.

And please don’t confuse this with the concept of “music should be free” because we’re in a “new era,” etc. It is nothing like that. My band The Vandals allow many unauthorized uploads on YouTube and other places as a measure of good will, we don’t run around and bust infringers routinely. We get it, they listen, they might come to a show or push some kind of demand for us. Musopen is not a part of that movement, make no mistake. They are extremists trying to deprive honest working people of what they already earned to spite them for having the audacity to charge for their services.

The EFF calls for “music lovers” to support them with their wallets. This isn’t for music lovers, it’s for music killers. I actually used to have respect for EFF. I thought they were an important part of the debate but this is off the deep end. They’ve officially lost me, and the Barely Legal Radio program. I’ll be talking more about this on Sunday’s KFWB show. I’d love to know what the Big Hollywood readers think about this.

J.D. Salinger

American law differs from law in Europe (and elsewhere) by not granting-except in limited cases-any “moral rights” to the creator of an artistic work.  Moral rights are designed to protect the integrity of a work; for example, moral rights could stop a television station from editing a movie in ways the director believes undermine his artistic vision.  Copyright law, however, has no such interest.  The Copyright Act rests on Congress’ authority under the United States Constitution “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Thus, the purpose of copyright law is to encourage creativity by giving artists, authors, and others the exclusive right to benefit from their creative efforts for a limited period of time. 

Copyright law, then, incentivizes the creation and dissemination of new works.  Without copyright law, U2 might not make music.  And even if they did, the band might not make any effort to disseminate the work publicly; there would be little or no economic incentive to do so since the songs could lawfully be copied and distributed by others for free.  But with copyright law, U2 has reason to make its works available worldwide, and now the means to own half of Ireland. 

There are, of course, limits to the temporary monopoly given to copyright authors.  Some uses of a copyrighted work are deemed fair, and thus lawful, even without permission from or payment to the copyright author.  Because of this “fair use” doctrine, I can sing “Happy Birthday”-a copyrighted musical composition-to my daughter without being liable for copyright infringement.  The “fair use” doctrine makes copyright law workable-without it, we would all be engaged in a string of infringing acts every day of our lives-and it is the primary issue in most copyright lawsuits.

But in many cases, application of the “fair use” doctrine has become divorced from the purpose of copyright law.  The Salinger case looks like the latest example.  Because of case law, the parties there will focus a great deal on whether Colting’s work is a parody of Salinger’s work, because the Supreme Court has held that parody-using a copyrighted work to the extent necessary to criticize or mock it-is entitled to substantial First Amendment protection.  But before a court even gets to that question, a more fundamental inquiry is in order: Does allowing novels like Colting’s undermine copyright’s goal of encouraging creative works?  It is not clear that it would.  Colting’s work would not harm the economic value of Salinger’s; it is hard to believe that people will see his work as a substitute for “The Catcher in the Rye” and buy the former instead of the latter.  If anything, Colting’s work would likely increase Salinger’s sales.  Thus, it is virtually impossible to imagine that allowing another author to borrow from Salinger’s work in a new novel would have dissuaded Salinger from writing and publishing “The Catcher in the Rye” in the first place.  Applying copyright law to Colting’s novel appears unnecessary; Salinger would likely have written and disseminated “The Catcher in the Rye” regardless of whether the Copyright Act allows Colting’s work to be published. 

We can sympathize with Salinger’s desire to keep other authors from using his characters and novels in ways he does not like.  But copyright law is not supposed to have an interest in Salinger’s desire to shield his work from disrespectful treatment or use by artists that Salinger believes are unworthy of his masterpiece. 

We are left, then, with an ironic and unfortunate result: a law that is designed to encourage creative works has been used to stifle one author’s creativity-to ban his book, at least temporarily-even while the decision would do nothing to encourage creative works by Salinger.  In this case, it seems, copyright law has failed.