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So, I've gotten a few comments on "Asshole of the Month", some private, some not (near the bottom)

Since Matt was kind enough to be more public, (and just to head one bit of possible stupid off, no, I'm not angry, or even irritated at Matt for disagreeing with me. We've disagreed rather a lot in the time we've known each other, and agreed on probably a slightly larger number of issues. Or not. But even when I think Matt's been in Oklahoma a leeeeetle too long, I'll take his criticism over quite a few other people's praise.), I want to address something that he said.

I'm not pissed solely because quite often, tab sites are the only way to find written transcriptions of music. While that's annoying, Matt's somewhat correct in saying availability doesn't trump copyright. (That's not black and white, as we'll see, but it's a valid point.)

What I'm pissed about is how the MPA is attempting to paint free tab sites as something they aren't, and that is a blatant violation of US Copyright Law, (To be blunt, I could care less about copyright law in places I don't live, because, well, I don't live there.), and that's not even close to as clear cut as Napster, Grokster, et al. (No, I don't care if you like copyright law. "Like" doesn't apply.) Understand that I have, in my life, made money that I might not have made without U.S. Copyright law, so I'm not about to say it's crapola. But, I happen to think that free tab sites are covered by Fair Use, as outlined in section 107 of US Copyright law, and partially by sections 108 and 109. I'm going to concentrate more on 107, because it's short, and easy to read and understand on a basic level. From http://www.copyright.gov/title17/92chap1.html#107:

§ 107. Limitations on exclusive rights: Fair use³⁸

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Now, one of the problems with 107 is that it's kind of vague. That's good, in that it allows for flexibility, and bad, in that it's not real clear. However, let's look at this section as it might apply to Tab sites, keeping in mind that when I speak of Tab Sites, there are some qualifications:

1. They're free. You can upload and download tabs without paying, contributing money, or having to watch ads as a requirement for uploading and downloading tabs


2. The people who wrote the tabs didn't just copy them out of a Hal Leonard or some other book, or scan them in, but rather did it the old fashioned way, by listening and doping it out.

The first test in 107 is:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Now, if we look at the free tab sites, the commercial nature issue isn't. They're free. Note that if you read the information in the laws and around the rest of the site, if you have ads that generate enough money for you to pay for your bandwidth, ISP charges, etc., that's okay. "Commercial" in this case is saying or implying that to use the tabs, or add new ones, you must pay the site owner money, or perform an action that will generate them money. If all you have to do to get to a tab is click on the link(s) to the artist's name, and then select the tab you're interested in, and it's there in all its text glory, that's not commercial. None of the tab sites I've used have ever explicitly or implicitly required that I make them money before I can grab a tab. So they're not of a commercial nature.

Are they educational in nature? Well, yes, undoubtedly. They're not a formal educational institution, but the only reason for tabs is to help you learn how to play a song. They have no value other than educational. From what I can tell, free tab sites do well by the first test.

The second test in 107 is:

(2) the nature of the copyrighted work;

Here is where it gets dicey, because there's two possible copyrighted works: The original work or song, and any published written musical notations and tabs. Well, more accurately, there's always the original work, and possibly a second work. Does Fair Use protect Tab sites with regard to the original work? Well, to my reading of things, (and I am obviously not a lawyer), yes. Tabs are not a reproduction of the song the way an MP3 is. They're a written transcription of the song, (and not particularly complete either, but we'll get to that later). You can't look at a Tab of a song and say "Wow, now I know what that song is". With regard to the second, well, keeping in mind that no one test is a "primary" test, it would seem to depend. If you don't own a published copy of that song's music and/or tabs, you've never seen the published copy, and you just sat there with a legal copy of the song and played it ad infinitum until you had tabs that seemed to work, then you're probably okay under the second test. Maybe. If you just copied it out of a book or other published version, then you're hosed, because now you're copying the same thing, and in this case, being free doesn't help you out.

The third test in 107 is:

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Unfortunately, while there are guidelines as to how much is too much, none of that is part of the law. Circular 21, Reproduction of Copyrighted Works by Educators and Librarians gives some guidelines on page 8, but these are not hard and fast, nor are they even rules, as stated on pages 7 & 8:

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines. Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

So if the MPA is going to use Circular 21 as some kind of hard and fast rule, they're trying to walk on cold water. As far as the law is concerned, there's no set number:

How much of someone else's work can I use without getting permission?
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.

There's no good answer here, but I'll point out some things about Tabs. First, unless you're just a genius, ala my ex, Jenny, and the Tabs are of astoundingly high quality, there's simply no way you can look at the Tab for a song you've never heard before and know how to perfectly reproduce that song. Hell, even if you are that level of a genius, and the Tabs are that good, I still don't think you could do it. Tabs just don't do that. A properly written musical score does that. If you can read music, and play the required instruments well enough, you can, with a properly written score, accurately reproduce that song in it's entirety, even if you haven't heard it before. Tabs are not complete scores. All Tabs do is show you what fingers need to be on what strings on what frets to play a given note or chord in a song. Spacing between tabs attempts to show you the timing, (i.e. quarter/half/whole note), but that's totally subjective. If I show you a line of music with the correct notation, you know the basic time of the music, (4/4, 3/4, etc.), the length of the notes, the time in between the notes, and really, every single bit of metadata you need to play that music right. It will also, unless dedicated to a specific instrument, (like the scores from the Harry Potter movies that are written for Viola and Piano that I bought my son), show you all the instruments needed to play a song. Tabs are not scores.

First, it's common to have a Tab that doesn't completely cover a song. Writing tabs is tedious. So what you'll get is something like this:

Fall Behind Me Tab by Donnas, www.Ultimate-Guitar.Com · Fall Behind Me Tab @ 911Tabs.Com

The Donnas - Fall Behind Me

Main riff:

E||----------------------------------|-----------------------------|
B||-----------------------------------|---------------13----------|
G||-------------------12--10~-----|---------------12b---10~-|
D||--0--10--12--0------------0---|----10--12--0-------------|
A||----------------------------------|-----------------------------|
E||----------------------------------|-----------------------------|

---------------------------------|----------------------------------|
---------------------------------|----------------------------------|
--------------------12--10~---|---------------12b-12--10~---|
--0--10--12--0------------0--|----10--12--0------------------|
---------------------------------|----------------------------------|
---------------------------------|----------------------------------|

Now, even allowing for the rest of the tab download I got this from covering the rest of the song reasonably well, if you've never heard the song, that's useless to you.

First, this isn't the main riff. It's the opening guitar line. Secondly, if you went by this, you'd play it once. That would be wrong. You play it four times at the start of the song, and twice between chorus and verses. (How do I know this? I'm a Donnas fanboy, I know their music.) Third, it's only one guitar line. There's at least two in that song, a bass line, and of course the drums. And the lyrics. This is one guitar line. If you aren't familiar with Tabs, or the song, then you'd not know that ~ means vibrato, and b means a bent note. Of course, even knowing that, do you bend the note a quarter, a half, a whole? This won't tell you. What kind of notes are they? Quarter, half, whole? This sort of tells you, but not really. If you've never heard the song, (and I really shall pimp here. Go and buy the entire Donnas catalog. Now. You'll not be disappointed. Unless you suck. There. Pimping ended.), you've almost no chance of playing this riff correctly once, much less the required 4 times prior to the main part of the song.

You still don't have the bass, second guitar, drums, or lyrics. You don't know when the bass and drums come in, which parts either guitar plays, (oh, to make it better, The Donnas only have one guitarist, Allison. So the fact that there are multiple guitar parts on this song won't occur to you if you've only ever heard it live, and only have this tab).

I cannot, and I doubt anyone who didn't own the song, could use this tab to reproduce this song. Now, if you own the song, and have the tab, you can, with some practice, get pretty good with this one line. Of course, you don't know what effects Allison was using for the guitars, or what Maya was using on her bass. Tabs don't usually tell you that. Nor do they tell you things like this song is different from most of Allison's work, because instead of her usual Les Paul, she used an SG for this song. Different sound.

That's assuming the Tab isn't like some i've seen where they tab out a couple of odd bits, and tell you "the rest of the song is just A5s and E5s. Listen enough, you'll figure it out". That's not unusual for Tabs. Lauren and the MPA trying to turn Tabs into complete musical scores is honestly, just laughable. So I'm thinking that the free Tab sites are good under test 3.

The final test is:

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This one again, depends. Is the existence of a Tab to Fall Behind Me going to hurt The Donnas? Um, no way in hell. In fact, I'll categorically state that the more garage and cover bands that play The Donnas' music, the more music they sell. Unless the cover band sucks. But that's not the fault of the Tab site. Those are just crappy bands, and they are not, alas, illegal. But I think that, unlike Napster and Grokster's attempts at this, you can make a pretty damned solid case that not only don't tab sites hurt musicians with regard to music sales, they actually help them.

Will a Tab site hurt Hal Leonard and other people publishing books of music. Honestly, I don't really know, I've not seen any numbers at all on this. Not even from the MPA, and it's pretty clear that to push this in court, they'll have to show real harm. I know that for my part, if there's a proper book available, I'll use it instead. It still won't be a perfect transcription of the song, but they will have the real musical notes and scores, and those are of real use to me, especially when they have the tabs in there too.

Considering that tabs have been around a very long time, are easily distributed en masse, even without the Intarweb, I don't see the MPA doing well here either, especially considering that the true copyright holders of the songs tend to benefit from tab sites.

Again, if you're just scanning a Hal Leonard book, that's straight copying, and a different issue. If you run a Tab site, and you charge for access to the Tabs, you're playing a different game, and you're blood in the water. But from what I can tell, the free Tab sites would seem to have a solid case for Fair Use as it exists under section 107 of U.S. Copyright Law.

So no, it's not just that I want stuff for free. It's that I think the MPA is trying to fight RIAA's battle, only unlike RIAA, the have much less of a leg to stand on.

Technorati Tags: Guitar Tabs, Lauren Keiser - Asshole, Music, Fair Use

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