The music industry is stepping up the war against creative sharing by shutting down a major DIY resource for musicians on the Net.
OLGA, the On-Line Guitar Archive, closed its doors Tuesday night, upon threat of a summons by the Harry Fox Agency, which provides representation for music publishers and handles the collection of royalties for their copyrighted works.
OLGA is a volunteer, grassroots effort that has been online since 1992, having grown out of the rec.music.makers.guitar.tablature newsgroup, where musicians post and share their interpretations on how to play popular songs. The interpretations are written as tablature, a kind of music notation used for stringed instruments, that allows another musician to read (and play) the interpreted songs. The OLGA archives contain tablature for more than 30,000 songs and are mirrored on several sites around the globe.
"Some sites have been closed down because they contain copyrighted material," said Margaret Drum, spokeswoman for the Harry Fox Agency. "The copyright owner can distribute their own [copyrighted material] -- it can't be done by other people, and that's why it's considered an infringement."
The agency is not offering further comment on the matter.
"This has been referred to our legal department, and we do not comment on anything that's currently in the legal process," Drum said.
Late last week, the agency sent a letter to the OLGA Legal Advisory Committee -- a group of volunteers formed in the event of a situation like this -- asking them to close OLGA by 8 June or face a summons.
"They made this deadline, they didn't give us any information about anything at all, and if it wasn't resolved by Monday, then they would advise their principals that the matter was not resolvable except through litigation," said Cal Woods, who has been OLGA's main administrator since 1994.
As a gesture of good faith, and in an attempt to avoid the summons, Woods asked all of the OLGA mirror sites to close, and took down the main site himself at 8 p.m. EST on Tuesday.
By Woods' estimate, there are 20,000 to 25,000 individual contributors to OLGA's archives. Have they all committed a crime?
Online copyright scholar Julie E. Cohen, an assistant professor at the University of Pittsburgh School of Law, said that interpretation of a song can indeed be an infringement, in at least two different ways.
"First, interpretations reduced to text documents are probably derivative works. Derivative works cannot be produced or distributed without the copyright owner's permission," she said.
"Second, depending on how much the interpretation varies from the original, making a sound recording of the interpretation available via the Net might constitute an infringing public performance," said Cohen. "The Copyright Act does provide for compulsory licenses to make sound recordings of others' copyrighted musical compositions, but the compulsory license does not extend to recordings that 'change the basic melody or fundamental character of the work.' "And in any case, compulsory license means that the copyright owner, represented by Harry Fox, would expect to be paid," she said.
The big question, Cohen said, is whether or not OLGA can be characterized as a fair use, since the tablatures themselves may not threaten any existing or potential market. Since they might facilitate additional public performances or recordings of a particular work, their availability may even result in increased revenue for copyright holders.
"I'm convinced that the dissemination of tablature by OLGA promotes the compensation of the artists whose works are part of OLGA," said Gabriel Wachob, a member of the OLGA Legal Advisory Committee.
One possible way to subvert the attack on freely available information is for artists to employ tactics pioneered in computer software -- namely, the so-called 'copyleft' used in the growing free-software movement, where an author of a work retains copyright but gives away restrictions of duplication and modification. Copyleftists are beginning to apply these principles to non-software works, including music.
Ram Samudrala is one such free-music pioneer. The music of his band, Twisted Helices, is published according to the Free Music Philosophy, where copying and modification of the music by anyone is permitted.
Samudrala said that by shutting down OLGA, the Harry Fox Agency has violated what he considers to be one of the tenets of copyright: to promote the progress of the sciences and useful arts -- a principle that copyleftists aim to advance.
"Intellectual property rights have gone way beyond what the founding fathers originally intended," Wachob said. "The online environment has lowered transaction costs, making the traditional cost and distribution structures upon which modern copyright laws are based obsolete. An author can often make more money these days by giving things away."
However, organizations like the Harry Fox Agency are not likely to accept this new economic model.
"I understand their desire to protect their clients' interest, but I think they are being extremely short-sighted in taking such an aggressive, litigious stance towards OLGA," Wachob said. "They could be in the position to facilitate organizations like OLGA who aid in the critical process of distribution of artistic works."
A petition in OLGA's defense has already drawn more than 2,000 signatures in its first day; Woods said OLGA also hopes to incorporate as a charitable organization in order to accept donations. But the most hopeful outlook for OLGA, he said, is if they can get a judge to make a declaratory ruling on the fair use of tablature. That would mean they wouldn't have to go through the whole court process a summons would dictate.
"Famous artists have to start realizing that they're on the losing end here," said Samudrala. "One way to establish an artist for a long time is through fan interest and dedication, which is partly removed when fans don't have the freedom to put up and play tablature off the Net."
