Sunday, January 29, 2023


Two wrongs don't make a right.

That is my opinion. It has also been called an idiom,  a proverb, occasionally a rebuttal of defence/defense for lack of candour, or for violent retaliation, and more.

As a copyright enthusiast, I believe that when a songwriter writes a song, the lyrics of that song are protected by copyright and the rights to publish and copy and exploit that work (the song lyrics) belong exclusively to the songwriter and to anyone to whom he or she or they assign(s) the copyright.

They do not belong to someone who copies the lyrics verbatim, even if --perhaps-- a word or two of the transcription is misheard or misspelled. That is not, in my opinion, transformative. 

So that is "Wrong One". "Wrong Two" is currently being litigated. May fan-transcribed lyrics be copied and pasted onto another site, whether or not the TOS of the site hosting the fan-transcribed lyrics forbid "scraping"?

I would say, "Pot meet Kettle".

Excellent legal blogger Pramod Chintalpoodi of the Chip Law Group discusses a most interesting case that may come before the Supreme Court, to wit:

"Does the Copyright Act’s preemption clause allow a business to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?"

The lower courts focused on the strength and force of browsewrap. They neglected to parse the meaning of "its" (in the content of "its content"). I await SCOTUS question time with bated breath. Not "baited". Never "baited".

Matters may be more complicated if the lyrics in question predate 1972, and I am not a lawyer, but even so, the "law" seems to relate to "sound recordings" (the sound track) and not to the rights to the poetry.

TOSS is my play on words for Terms Of Service, btw. I hope the case is granted certiorari.

Talking of copyright infringment and scraping, and of intelligence, Intellectual Property legal blogger Jeremy Goldman of the law firm Frankfurt Kurnit Klein and Selz PC poses a fundamental --and quite topical-- question about the rights under copyright laws of creators, namely:

"... do content creators have the right to authorize or block AI systems from collecting and using their content as training data?"

As Mr. Goldman says,  "In the United States, copyright subsists in original works of authorship fixed in tangible media of expression."

It is a meaty piece, and I may return to chew on AI another time.

All the best,

Rowena Cherry 
EPIC Award winner, Friend of ePublishing for Crazy Tuesday   

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