The information-wants-to-be-free environment that once pervaded the Web was dealt another death-blow this week with the shutdown of the Online Guitar Archive (OLGA), a Net-based library of guitar music charts, following a legal threat by a division of the National Music Publishers' Association.
The Harry Fox Agency, which represents music publishers by issuing licenses and collecting royalties, threatened legal action against OLGA if it failed to shut down its library of guitar tablatures by June 8.
A tablature or "tab" is "a notation for stringed instruments, with (in the case of guitar music) six lines (representing the guitar strings) and numbers (representing fret positions)?which teach guitarists all over the world how to play their favorite songs," according to OLGA.
Whereas printed sheet music is put out by the music publishers that hold copyrights, the tabs on OLGA are mostly written by the community that uses them. OLGA has been online since 1992 and evolved out of Usenet newsgroups "alt.guitar.tab" and "rec.music.makers.guitar.tablature."
At issue is whether the sites' posting of the tablatures constitutes copyright infringement or falls under the "fair use" clause within U.S. copyright law.
The explosion of the Web's popularity has raised myriad copyright issues, and the active music community online has provided fertile ground for extensive debate and lawsuits. Organizations such as the American Society of Composers, Authors, and Publishers have updated their licensing structures to include situations unique to the digital medium. And artists and others have sued over illegal uses of their music.
According to the clause, "?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."
It also specifies factors to determine fair use. "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."
Neither the Harry Fox Agency nor OLGA representatives were available for comment. But a petition is posted on OLGA's behalf that more than 4,800 people have signed, according to a message on the LSDS Music Archives site. Comments by OLGA supporters also were published on the site. Many of those posts claim OLGA is an educational resource and not meant for commercial use, which would place it under fair use protection.
"I have devoted countless hours of my time learning songs and tabbing them out for others. I'm appalled that I cannot share my own work with others. Do I get paid for it? Do I try to sell it? NO!" wrote one petition signer, listed as Russ from Newark, New Jersey. "Thanks to OLGA I learned new songs and styles, and when I became a good proficient guitarist I felt I needed to turn around and help others as well. OLGA is all about education."
Others were less eloquent, but no less passionate. One signer wrote "GREED" dozens of times.
A teacher from Arizona also weighed in with OLGA's educational function: "As a high school teacher I depend on OLGA for teaching purposes. Education would be a big loser if OLGA was permanently shut down. The music industry would be shooting itself in the foot. OLGA generates huge dollars for the music industry because it creates and maintains interest in songs and music."
The argument that the music industry benefits has been attempted in the past by sites that have gotten into legal hot water by posting digitized versions of songs. For example, the Recording Industry Association of America sued the operators of two music archive or MP3 (MPEG 1, Audio Layer 3) sites for millions of dollars.
One site operator sued by the RIAA said he linked to a Net CD store and that many fans went from his site to the store to buy CDs--but the RIAA countered that copyright holders are the only ones with the legal right to determine uses for the protected works.
Disputes over fair use have stretched into other areas of music on the Net as well. Many music retailers online post 30-second samples of songs, hoping to increase sales. The store operators say that practice falls under fair use--but groups such as ASCAP and BMI have claimed that even a 30-second clip constitutes a "performance," and therefore requires a licensing fee. According to those groups, a performance need not be tied to a sale to require a licensing fee.
Though OLGA is closed, there are mirror sites still up and running in Canada, South Africa, and all over Europe. A message on the OLGA site says mirror sites are being shut down or are closing voluntarily to avoid legal action, but it is unclear whether the Harry Fox Agency will pursue sites outside the United States.