A Critique of the Electronic Frontier Foundation's "Open Audio License"
The EFF's "Open Audio License" is claimed to provide "freedom," but in fact deprives artists of rewards for their work and exposes them to damaging exploitation. Perhaps even more disturbing, given its promotion by a group which purports to be a civil rights organization, is the license's explicit repudiation of the public's fair use rights
The Electronic Frontier Foundation, a non-profit organization whose purpose is to promote and protect civil rights in cyberspace, has recently published a document titled the "Open Audio License" (OAL) and recommended that composers, authors, publishers, and performers use it to license copyrighted works.
The OAL claims that it is intended "to use copyright tools to achieve copyright's stated objectives of spreading knowledge and culture while preserving incentives for the author." But does it accomplish this? In fact, there are compelling reasons to believe that it does not. The terms of the OAL may seriously harm musicians and composers who are persuaded -- perhaps by the sales pitch in the license's "preamble," misleading hype, or celebrity endorsements -- to stamp it on their work without fully understanding the consequences. Not only does the OAL deprive authors, composers, and performers of income from their work; it also permanently strips them of rights which may be far more valuable to them than money.
If you, as an artist, license your work under the OAL:
Does the OAL give away too much?
The most serious flaw of the OAL is that it gives away so many rights that it is extremely unlikely to be in the interests of the artist to use it. The OAL states:
If used in conjunction with a sound recording (whether in digital or analog form), this license encompasses the copyright in both the sound recording (the "master" rights) and the underlying musical composition (the "songwriter" rights).While the OAL doesn't use the terms of art, or jargon, that one normally sees in a music license (e.g. "mechanical rights," "small rights," "grand rights," etc.), the intent is clear. If you, as an composer or performer, release a composition and/or a sound recording under the OAL, you're not merely giving the public the right to freely play or share just one recording or performance (as, for example, the band The Grateful Dead did by allowing taping at its concerts). Nor can you allow fans to trade amateur tapes for non-commercial purposes only (another Grateful Dead policy which created goodwill and publicity for the band while preserving its revenues). If you use the OAL, you must give away all of your rights in the musical work, as well as to your performance, in exchange for a brief mention of the fact that you were the composer. (To get an idea of just how many rights and sources of revenue you may be giving up, see the essay Music and Money: Where the Money Comes From For Writers and Publishers, published at http://www.ascap.com/musicbiz/money-intro.html on the World Wide Web.) The same publishers whom many (including the EFF) condemn for paying artists too little can now sell copies of your work and pay you nothing.
What if what you really want is to allow fans, radio stations, etc. to copy or play a particular recording without giving away all of the rights to your song? Unfortunately, the OAL does not allow any such option. The OAL gives away all your rights except for the right to have the work attributed to you -- if you are the composer. If you are merely a performer who decides to perform the work, or the author of a derivative work, you do not even have this right (see below).
No Credit to Performers or Subsequent Contributors
An equally serious problem with the OAL is that while it requires the composer of the work to be given credit, it does not require that a performer be credited at all. Thus, a performer who popularizes a work released under the OAL is deprived not only of financial rewards but of credit for his or her artistic contribution.
Likewise, writers other than the "Original Author" get nothing -- not even credit -- for their contributions. Suppose that a musician discovers an OALed song that is a "diamond in the rough." He or she improves the song -- say, by adding a bridge or a new verse, altering the melody, adding harmonies, or adding a catchy "riff" that makes the final work unforgettable. The song then becomes a big hit. But due to the "viral" provision of the OAL (euphemistically called an agreement "Not to Limit Others' Use"), the new version -- including the subsequent author's additions -- must also be licensed under the OAL and given away. (This requirement applies no matter how little of the OALed work is used. If the subsequent author borrows only part of the melody, or a chord progression, or one phrase from the lyrics, his work is as much "infected" by the viral license as if he had used the entire piece.) Can the subsequent author secure payment for his work? No. Credit? No. Anything at all? No. He or she is not the "Original Author," and under the license has no right even to be credited as a contributor. (Music arrangers, who often make vital contributions to the finished product, are likewise ignored by the license.) Is this fair? Because it does not require credit where credit is due, the OAL is more likely to discourage sharing than to encourage it.
Potential Damage to Reputation Due to Unrestrained Use
Imagine the following scenario. Maria Musician writes and records a moving and beautiful song titled "It's My Choice." She is persuaded by the OAL's "preamble" to release this lovely ballad about freedom under the OAL.
Not long after, Maria, a devout Catholic who is strongly opposed to elective abortion, is shocked to discover that her song is being used as part of a commercial that is being run nationwide by a "pro-choice" organization. The commercial gives her prominent credit for the song, as required by the OAL.
Ironically, the required attribution actually hurts Maria, who is shunned by her fellow churchgoers and by her family. Her reputation and personal relationships badly damaged, Maria protests the use of her work and threatens legal action. The organization that ran the commercial points out that, according to the terms of the OAL, it is entitled to use her work so long as it gives her credit. Maria's relationships with her family, her friends, her church, and her fans are ruined forever, and she has no legal recourse.
Many other scenarios are possible in which the unlimited use permitted by the OAL could damage an artist's reputation. What if, for example, your song was adopted by a "hate group?" Or used in advertising by a company which you believe to be unethical or whose products you do not endorse? Or in support of a political position with which you vehemently disagree? With other forms of music licensing, the author can prevent such disasters. But under the OAL, artists are left utterly unprotected.
"Innocent" uses of OALed music can force musicians to forfeit their own work
In the 1991 court case Grand Upright Music Ltd. v. Warner Bros. Records, Inc., it was determined that the use of "samples" of another artist's work (a common practice in "hip-hop" recordings) was not "fair use;" in other words, it may not be done without permission from the original author.
It would be in the public interest -- and consistent with the EFF's other positions -- to promote the use of brief samples from existing works as a form of "fair use." But the OAL does exactly the opposite. Instead of allowing sampling with no penalty, the OAL may force the author of a piece that uses a sample from an OALed work to apply the OAL to his own composition, forfeiting any opportunity he might have to profit from his hard work. Use a sample (no matter how small) from an OALed recording without special permission, and your finished work must be licensed under the OAL and given away. Forced "sharing" is, essentially, the confiscation of one's work; it is the antithesis of freedom. The OAL 's "viral" provision, which forces derivative works to be licensed under the OAL, destroys freedom rather than creating it.
It may be unsafe to "cover" an OALed work
Likewise, a musician other than the original author who "covers" a work which has been released under the OAL may be forced to forfeit the rights to his or her performance... even if he or she did not know in advance that the song was released under the OAL. This is due to the following language in the OAL:
Section II, Clause 3:
Any new work that in whole or in part contains or is derived from a work (or part thereof) made available under this license, must itself be licensed as a whole under the terms of this license.Section II, Clause 4:
nothing besides this license grants you authorization to copy, distribute, adapt, or publicly perform royalty-free the copyrighted works released under it.The full implications of this language have, of course, have never been tested in court. However, because of this language, it may be unwise for you, as a musician, to "cover" an OALed tune. If you do, you may have no recourse if, for example, your performance is surreptitiously taped and then commercially exploited.
Issues Involving Performing Rights Organizations (e.g. ASCAP)
When you OAL a work, you cannot use it to qualify for membership in a performing rights organization such as ASCAP, BMI, or SESAC. What's more, these organizations cannot work for you to preserve the few rights you have not given away -- in particular, your right to attribution -- because the OAL falls outside the scope of the licenses these organizations grant to music venues and broadcasters. Without the support of such an organization, you will, most likely, be unable to claim and enforce worldwide the few rights you have left under the OAL.
You Can't Take It Back
What if you, as an author, discover that you didn't fully understand the impact the OAL would have on your work or your career, and wish you'd licensed a composition in a different way? Can you change your mind? Can you renegotiate? Alas, according to the terms of the OAL, it's too late. You have "irrevocably and perpetually" forfeited your rights. With the OAL -- to paraphrase a well-known advertisement -- "Music checks in, but it can't check out."
Repudiation of Fair Use Rights
Even more disturbing, from a civil rights standpoint, is the fact that the OAL attempts to deny the public its traditional fair use rights. As mentioned above, the OAL claims that "nothing besides this license grants you authorization to copy, distribute, adapt, or publicly perform royalty-free the copyrighted works released under it." In short, while the EFF claims to support the preservation of the public's fair use rights, its recommended music license -- the OAL -- explicitly repudiates them! The fact that the EFF has embraced this language indicates either that it truly does not wish to protect the public's rights or that its adoption of the OAL was ill-considered.
The OAL is poorly drawn in other ways as well. As mentioned earlier, the OAL does not use the standard "terms of art" found in music licenses; therefore, the meanings of many of its provisions may need to be decided in court. And the OAL's "viral" provision, which requires derivative works to be licensed under the OAL, is problematic and likely to be ruled legally invalid because, by agreeing to it, one is "making a contract to make a contract." Such "meta-contracts" are always invalid in many jurisdictions, and are enforceable in some others only in situations where all of the details of the contract -- in particular, the value of the consideration -- are known in advance. Since the value which an author is giving up by accepting the OAL is inestimable, the provision is unlikely to prove enforceable in any jurisdiction.
Another problem in the license is that it does not prohibit the use of technological access controls -- the circumvention of which was recently made illegal by the Digital Millennium Copyright Act of 1998 -- to limit access to OALed content. Thus, while the OAL purports to make music "free," access to it can in fact be restricted at will. Authors of OALed works may be surprised and dismayed to discover that their work may be published in media that prevent it from being copied or played without payment of a fee to the publisher.
The license also lacks a severability clause, which means that the entire license may become null and void should just one of its provisions be ruled to be legally invalid. (This presents a severe potential liability for any user of an OALed work, as it would revoke the permission upon which he or she relies to use the work.)
For all these reasons, as well as the other problems mentioned earlier, composers, performers, and publishers may be well advised to avoid both the use of OALed works and the use of the license itself.
The Origins of the OAL
Where did the OAL come from? The OAL's format and language are based not on a license originally written with music in mind, but rather on one designed for software. From the text of the OAL, it is clear that the person or persons at the EFF who composed the license did not consult working musicians to determine their needs and do not understand the subtleties of the laws under which music is now distributed. (This is not surprising, since the EFF's specialty is civil rights, computers, and the Internet rather than music law.)
Of more concern still is that the software license which the EFF chose to use as the basis of the OAL is the GNU General Public License (see http://www.fsf.org/copyleft/gpl.html). The purpose of the GPL is to negate the intellectual property laws that protect creators of computer programs -- in the name of "freedom." The author of the GPL, Richard Stallman, has repeatedly stated that creative works such as software and music "should not have owners" (see http://www.fsf.org/philosophy/why-free.html on the World Wide Web) and that intellectual property laws are "evil."
The OAL thus gets off on the wrong foot from the start. Like the GPL, the OAL gives consumers the use of intellectual property for free but destroys opportunities for the creators of those works to earn a living. As with the GPL, the language of the license's preamble, and of other materials on the EFF's Web site, are likely to mislead composers, authors, and publishers into believing that they will benefit from releasing their work under the license when in fact they stand to forfeit rights that they may not have realized they possessed -- as well as virtually all present and future rewards for their hard work.
Music is Already "Open Source"
The EFF also fails to recognize that, unlike a packaged software program delivered without the original text ("source code"), music is always "open source." Even without sheet music (which is readily available for popular works), any skilled musician can reproduce a musical piece accurately by ear and/or from a recording. And because the law provides for compuslory mechanical licenses, a musician can record and sell his or her own rendition of any published work for a very small fixed fee. (This fee is currently about 7 cents per copy, and is often reduced by 20-30% when explicit permission is obtained from the author or original publisher of the work.) In many genres, including jazz, bluegrass, folk, and "filk," sharing of music and musical ideas is already the norm. In short, current law does not present a barrier to the sharing of music among musicians on reasonable terms.
Are There Better Options?
Because the OAL is so onerous, it may be better for composers and performers to license music which they would like to see widely distributed and performed in other ways. For example, one option might be to offer, after verification of the way in which the music is to be used, free mechanical licenses (which would allow others to publish their own versions of a work without paying royalties). Likewise, the Grateful Dead's policy of allowing taping of live shows for non-commercial purposes -- but not distribution for profit or piracy of its published albums -- may be worth emulating. In all cases, musicians should consult with an experienced music lawyer before jumping on the OAL "bandwagon" -- a decision which might cause them to suffer irrevocable harm.
If there's so much wrong with the OAL, why is the EFF promoting it?
The EFF has condemned music publishers, and the Recording Industries Association of America (RIAA), for exploiting musicians and attempting to eliminate consumers' ability to exercise their "fair use" rights under copyright law. (These are the rights that allow you, for example, to make a tape of a copyrighted music CD for use in your car.) Much of this condemnation is well justified. However, it appears that, in its zeal to overthrow the old order, the EFF has hastily embraced a "cure" which is worse than the disease. Yes, an artist who signs an exploitative contract with a record label may not be paid adequately for his work. However, under the OAL, the artist is certain never to be paid. In short, the OAL is worse than the existing regime. What is needed, instead, is a scheme that is fair to artists. The OAL does not fill this need.
The EFF -- whose charter is to serve as a civil rights organization -- does not appear to be familiar with the logistics of the music business, the challenges faced by musicians and artists, and the important role that copyrights play to protect artists from the very abuses it condemns. It is this author's hope that, rather than attempting to "patch" the OAL, the EFF will reconsider its decision to become involved in the business of music licensing. The EFF, which has limited resources and important causes to pursue, should cease its promotion of the OAL and instead focus its efforts on an agenda which is within the scope of its organizational mission: ensuring that the public's "fair use" rights endure and are protected in the digital age.
|Copyright © 2001, 2003 by Brett Glass. Permission is granted to reproduce this essay in any medium so long as it is not altered in any way and proper attribution is given. All other rights reserved. This essay is not intended to constitute legal advice. If you need such advice, please consult an attorney who is skilled in the areas of intellectual property law and music licensing.|