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Old January 11th, 2009, 01:46 AM   #1
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Being Screwed By Local Public Access Channel...Please Help!

I'm a 16-year-old sophomore student at my district's high school, and I have been working with the district music department for four years now: I've produced several videos for the my middle school orchestra, band, and choir; filmed the high school marching band at all of their performances and competition in both the '07 and '08 seasons (which was later re-edited and used as a promotional tool to increase participation in the marching band); and I've also been filming school concerts.

A few months ago, I started "volunteering" with a local public access channel (outside of my town) in order to get some of my work broadcasted on TV. While filming local concerts as a "volunteer", many parents have approached me and asked for a copy of the concert on DVD, and were more than willing to pay for it. In the past, I have sold DVDs to students and parents for $5, but never requested administrator approval to do so.

In considering the sale of my work, I informed the station manager of the local public access channel (for the sake of discussion, lets call him "Bob"), and informed him of my intentions. He sounded aggravated, but agreed to let me proceed as long as I obtain my principle's permission.

Two days later, I received a phone call from my Bob. He told me that he spoke to the high school principle (not at my request, may I add) about my intention to sell DVDs at $5 each. My principal responded negatively, saying that he does not want one of his students selling DVDs of school concerts. Instead, Bob is now working on an agreement that would take me out of the picture. He wants to sell DVDs through the public access channel for $10 each.

Not only is Bob trying to sell my work without permission, but he's charging more, and the money doesn't even go to my township! Why would my principal want to concede to him instead of encouraging the education pursuits of one of his own students?

I placed a phone call to Bob after doing some research, and I found out that two forms should have been signed in order for me to officially become a volunteer. One of them, a "Work for Hire" agreement, would have had me sign over ownership of my work to the station. Since I did not sign it, however, I am under the impression that I own the material that I have filmed and edited to date. I own the copyright, yet Bob wants to duplicate and sell the DVD without my permission.

I'm outraged at the situation. All I wanted to do was distribute DVDs to my peers that have spent months preparing for a concert performance. Shouldn't they have a keepsake for their efforts? Shouldn't they have a DVD that they can send to family members that couldn't attend the concert? At $5 each, I think you can all agree that I wouldn't even be recovering my costs, especially not after taking into consideration the depreciation of my several thousand dollars worth of equipment (2 HD camcorders, microphones, MacBook Pro, Final Cut Studio 2, etc.).

My dad, who is also disgusted by Bob's actions, is planning to call the district supervisor of the music department. He knows the many contributions that I have made to bring publicity to the district's music programs, and he (along with the teachers that I have helped in the past) might be willing to come to bat for me. My dad is hoping that the district supervisor will be able to convince my principal to keep "editorial control" within the district by having me film and edit the school concerts.

I know that some of you have dealt with filming minors at school, and I was wondering if you might have any advice for me.
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Old January 11th, 2009, 05:49 AM   #2
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I'm not sure an answer from the UK is helpful as our rules are no doubt different, but I've a few comments. Before starting I really wish I had students with your level of ability, technical know how and mature attitude - but that's life!

Over here, our legal age of responsibility is 18, so even if you wanted to, at 16 you wouldn't have been able to sign anything without your parents being involved.

I worked in a UK college for 12 years in the kind of department you seem to be part of. Copyright is rather tricky. Over here, technically your school own the copyright on anything produced by their staff and students while carrying out their day to day activities. This is important because it means that if you produce some stunning photos the school can use in their publicity, they don't need your permission - it is already theirs! They obviously normally credit you (at least while you are there), but they can recycle it in ten years time - no problem. One of my students, as part of her music exams wrote a song. Her mother (dreadful woman) insisted the college were merely 'borrowing' it for the exam submission and wanted it back - which never happens. The college declared it theirs and the legal people informed the girl's mother who backed down. My best guess is that American law would have a very similar system in place.

You shot college people doing college originated activities - some maybe in college time?

I suspect very strongly that what you shot, AND what you did with it as a registered student will allow your Principal to claim it for the school - and most annoyingly, assign the copyright to the TV people if they wish.

If the concerts you shot were independent of the school and TV station, you used your own equipment and funded the tapes etc. yourself then this would be very different. My non-legal opinion would be that the school or TV station have no absolute right to use the material, but to market it would need the agreement of everyone who took part. Here, this would mean the musicians, the singers, the copyright holder of the actual music played and anybody else who had an input - possibly lighting or set designers - that kind of thing.

What I'd suggest is meeting the Principal to explain your position and ask what can be done - maybe having your dad there would add some weight to the meeting. There could be very good reasons the school have done this. At the very least, you might get credit in terms of your work on the finished product. I suspect that as somebody seems to be going to benefit financially, you, the TV station and the school have all got opinions. Money here is one issue, but if you are in education, then this is very good experience and has at the very least taught you that worthy acts are not always as simple as they seem.

Of course, you could always put the thing on youtube or vimeo, thereby preventing anyone from buying it when they can get it free........ but that would be mean, wouldn't it?

I hope it works out.
Paul
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Old January 11th, 2009, 06:01 AM   #3
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An additional wrinkle to all this that you need to be concerned about is whether or not you, or the school for that matter, has the rights to distribute recordings of the music that has been performed. The licenses the school has obtained to the music they're using usually would be performance licenses that do not allow for any recording of the performance with subsequent sales or broadcast of the recordings. And in any case, such rights are not transferrable to a third party, meaning that even if the school DOES have a license that allows them to record the performance, they still can't give you permission to sell copies because that would mean they're transferring the license to you. That means that even though you may own the copyright to the recordings you made, you still can't legally sell them because you don't have a license to reproduce the music they contain. If the school did have the necessary licenses, then the way you would have made the recording in the first place would be as a 'work-for-hire' where you're working for the school and they became the legal owner of the copyright to the recording and they would have made and sold the copies. Absent your working for the school under a 'work-for-hire', in terms of the legalities it might actually have been better for you in the long run to have signed that 'work-for-hire' agreement with the station so that the headaches of clearing the rights to recordings of copyright music would be the station's problem as the legal creators of the recordings. True, you may lose out on a few bucks on your DVD sales but I'll bet you could still get public credit for your work, always a good thing as your career develops.

Congratulations on your success at your young age. Don't let these legal hiccups discourage you - what you're doing, the initiative you're showing and the skills you're learning, are worth far more than the trivial value of a handfull of DVD sales. Good on ya! Just don't let the dispute over a couple of bucks create a lot of bad will and screw things up. Sometimes it's better just to move on.
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Last edited by Steve House; January 11th, 2009 at 09:58 AM.
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Old January 11th, 2009, 09:15 AM   #4
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Glenn... You've stepped into a legal morass that, unfortunately, may likely keep DVDs from being sold by anyone. I'm not a lawyer so I have no standing giving legal advice but Steve is right. The rights to the performed material must be secured to legally distribute the material. There is a recently active thread on this subject somewhere here that will give you some good detail. I suspect an authorized representative of the school or school district will also need to give you written authorization. There might also be other permissions you need to secure. Just because you shot the footage doesn't mean that you can do what you want with it.

This is a critical aspect of this business that you'll need to understand as you go forward in your career.

I'd agree that you might simply want to chalk this up as a learning experience and go find activities that you can shoot, produce and market. They're out there. Good luck!
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Old January 11th, 2009, 10:34 AM   #5
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Hey Glenn, there are many different aspects to your issue. The first is the music copyright at the concerts. Yes, the bands have bought performance rights to the music, but they and you did not buy the sync rights for the music. Without that, technically you can not sell (and possibly give away to parents) your recording of the concert. The use of your recording for promotion, to my understanding, falls under fair use for the school. The second is the work for hire. Since you are under 18 your parents would have to sign the form and obviously they did not. Therefore, you still own the copyright for your recording (especially since you own the equipment it was shot on) and the TV station can not use it without your permission. The law is fairly clear about that. Of course, you have a recording that can not be sold technically by anyone without the music rights. The last issue is filming minors. My dad, who is a band director, has to get releases from all parents to be able to post the kid's picture on the web. The reason the school system required that was not for copyright reasons like it should have, but for divorced parents reason. The whole thing was a real mess.

I hope this helps.

Matthew
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Old January 11th, 2009, 10:55 AM   #6
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Hey Glenn, there are many different aspects to your issue. The first is the music copyright at the concerts. .... The use of your recording for promotion, to my understanding, falls under fair use for the school. ...

It's my understanding that the "educational use" that is covered under the fair use doctrine is pretty well limited to use expressly for classroom instruction and promotion or fundraising uses are not included in it. Making copies of the tape to distribute to the other schools in the district to be used as teaching examples in their band classes would be fair use ... selling copies to parents to raise money for new band uniforms would not.
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Old January 11th, 2009, 11:09 AM   #7
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It's my understanding that the "educational use" that is covered under the fair use doctrine is pretty well limited to use expressly for classroom instruction and promotion or fundraising uses are not included in it.
I understand fund raising being a tricky issue. The law is as: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;" If you were using it fund raise, then I could see an issue. If you used it like my dad and made a band demo video that he showed to middle school band students to interest them in band, then I believe that legally falls under fair use. There was no commercial usage/purpose, and it was done by education for education.

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Old January 11th, 2009, 11:15 AM   #8
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I understand fund raising being a tricky issue. The law is as: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;" If you were using it fund raise, then I could see an issue. If you used it like my dad and made a band demo video that he showed to middle school band students to interest them in band, then I believe that legally falls under fair use. There was no commercial usage/purpose, and it was done by education for education.

Matthew
I am not a lawyer but I would certainly agree with you there, for a couple of reasons. One is I think that would be considered a legitimate educational use and the other is showing a tape you own is not the same thing as duplicating the tape and distributing the copies. If he owns a record he can play it for the group, as long as he doesn't charge admission. I don't know why he couldn't similarly show a video.
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Old January 11th, 2009, 12:15 PM   #9
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Glenn,

You're in a pickle. As others have pointed out, there are many overlapping issues -some at cross-purposes.

You are a legal minor, unable to sign binding contracts.

You probably don't have the synch/recording rights to the music that the band played.

You probably don't have the written releases for the images of the minor musicians???

On the other hand, it's probably true that the school doesn't have the synch rights, though there might be something in the school policy that allows them to use/broadcast the students images in a scholastic setting for promotional/newsworthy events.

The Public Access station doesn't have the synch rights, even if you or the school DID.

Unless otherwise expressly indicated the 'creator' of the image is the author for copyright purposes - expressly indicated means that it is deliniated as a 'work for hire'... without that written statement, its NOT a work for hire.

Copyrights can ONLY be transferred in writing. Verbal transfers are not legally binding... but are often looked on as a form of 'licensing'.

It is not necessary to 'sell' a DVD in order to infringe on a copyright. Merely duplicating it can be enough.

"Fair Use' is also a term that is kind of flexible - you often find out if its flexible enough in court.

My advice, is to forget about recouping anything off the work done already. Start anew, and make sure you're in the clear with who owns what rights going forward. You're young, and the point now is to get experience (That means making mistakes) now, so you won't have to do it again later.
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Old January 11th, 2009, 01:05 PM   #10
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Well, your principal and the station manager are absolutely horrible dishonest people!

Regardless of the licensing of music for the recordings, you should certainly let them know that YOU own the rights to the recordings, and YOU do not give permission for them to use or distribute them, unless they want to pay you!

Secondly, if you provided a benefit to them, and got nothing in return, they are guilty of "unjust enrichment"... you may want to let them know of this fact in writing, and that will most likely shut them up!

The only snag with all this is, at 16 are you legally able to work in your state?

hope that helps!
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Old January 11th, 2009, 02:29 PM   #11
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Richard has offered a pretty good summary of most of the issues, some of which are your responsibility (releases & permissions, licenses, synch licenses). He has given you very good advice.

Two things I would add to what he has already said...

1) if you are doing direct sales of these DVDs, then you may be liable to the state for state sales tax and may need to apply for a sales tax number.

2) you may also need location releases for public spaces you are filming.

If you are going to be a professional, then you will also need to comply with professional standards. This is a great age to find out what those are.

Otherwise, you should just treat this as a serious hobby and get all the experience that you can until you are ready to run it as a business or else go to work for someone else who takes care of all the legalities.

It depends on what you want to take away from the experience...do you want to make videos? Do you want to run a business? (in which case your education is just beginning, no matter how refined your production skills are...) Or both?
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Old January 11th, 2009, 02:33 PM   #12
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Thank you to everyone who has commented! I deeply appreciate all of your advice, and after seeing the actions of my principle and the station manager, its the great people at forums like these that remind me just how great the majority of the people in this industry really are. Granted, I haven't had much experience, but it seems like the video industry has some of the kindest people around. I'm humbled to be a part of it!

Paul - I had no idea that–at least in the UK–works produced during school-time could be considered the property of the school! That's something that I should look into, if not for video, but for papers and other things like that! As far as meeting with my principle, I agree that I need to set things straight with him. My intentions (to only sell the DVDs at cost) are probably unclear to him since he heard about them second-hand through the station manager. I plan on writing up a letter tonight that I can bring to his office tomorrow.

Steve, Tripp, Matthew, Richard - I definitely need to look into the "synch" rights for the music, as you all have mentioned. Luckily, I have the support of the district's music teachers, so they should be willing to help me pursue that. I tried researching an average cost for synch rights through google, but couldn't find any good results. One site did mention that fees often vary between $1,000 and $25,000; which are both way too expensive for me to try to pursue! Do you think that if I contact the publishing companies and explain to them that I would only be selling the DVDs to students and their families, that I might be able to purchase the synch prices for a cheaper cost? With the addition of synch costs, that's another reason why I would really need to be recovering my costs. Unfortunately, as many of you have mentioned, I've found myself in a bit of a legal pickle.

It is reassuring to hear that most of you agree about the copyright issue. Without (my parents) having signed the Work for Hire agreement, then I do own the copyright.

Regarding the release of the minors that are featured in the video, I actually offered to track down and draft some sort of a form that would obtain permission from the students involved. When I proposed the idea to my principal, however, he shot it down for reasons unknown to me. Going forward, I assume that I will have to secure their permission, especially before selling the DVDs (even though I only plan to sell it to family members). My older sister is a first-year law student, so she is going to talk to her professors and see what kind of permission I would be required to obtain.

John - I know that I could work in NJ if I complete working papers, but I'm not sure of the legal statutes regarding essentially starting my own sole-proprietorship business. My sister's fiancé is a comic book artist, and he has offered to help me write a business plan and become incorporated (although I need to look into possibly being an LLC instead, but that's an entirely different situation!). That should deal with any issues I might have by making money.

As for my plan, this is how I intend to go forward:

1. I'm going to give copies of the recent concerts that I have filmed to my principal tomorrow, along with a note that will list the other works I have done within the district. That should make my principal realize how active I have been and the improvements that I have made to the district's music program.

2. My dad is going to talk to the chair of visual and fine arts, and I'm also going to send a letter to the middle school principal. I've filmed a few of the middle school's concerts for broadcast over the television network, and I know that I have the full support of my old principal. She has encouraged me many times and even authorized me to attend one of the middle school's competitions for free (she waived the $100+ ticket and transportation fees).

3. Tomorrow afternoon, after the chair of the visual and fine arts department has had an opportunity to talk to my principal (assuming he's onboard to support me), then I'm going to deliver a letter to my principal that outlines my intentions, so that they are perfectly clear to him.

By then, I need to see how the situation stands in order to find out what further action is required.

Again, thank you all so much for your help! I hope that I can <i>legally</i> bring these students their DVDs!
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Old January 11th, 2009, 02:48 PM   #13
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Do you have anything similar to this in the US?
I do projects like this one, and we have a system which grants limited manufacturing rights for education/amateur/promotional material. Essentially the system offers on-line licensing by simply detailing total running time and musical genre. There's a limit of 1000 DVDs (or CDs) and a sliding scale of charges - which are very reasonable, less than a pound (won't do the conversion, too depressing). This allows videos of school or pretty well any music event to be produced and duplicated. It doesn't allow things like shows to be done - as the copyright clearance for this type of product is not covered.

It's simple, painless and very useful - would have no doubt made this less of a problem, as if Glenn had taken out the license, they'd have a bad time proving it wasn't his product! I'm guessing from what you are all saying, that you don't have this. Mind you, we don't have any form of 'fair use' - it's either ok or not - and we cannot legally use anything without permission.
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Old January 11th, 2009, 04:07 PM   #14
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Do you have anything similar to this in the US?
I do projects like this one, and we have a system which grants limited manufacturing rights for education/amateur/promotional material. Essentially the system offers on-line licensing by simply detailing total running time and musical genre. There's a limit of 1000 DVDs (or CDs) and a sliding scale of charges - which are very reasonable, less than a pound (won't do the conversion, too depressing). This allows videos of school or pretty well any music event to be produced and duplicated. It doesn't allow things like shows to be done - as the copyright clearance for this type of product is not covered.

It's simple, painless and very useful - would have no doubt made this less of a problem, as if Glenn had taken out the license, they'd have a bad time proving it wasn't his product! I'm guessing from what you are all saying, that you don't have this. Mind you, we don't have any form of 'fair use' - it's either ok or not - and we cannot legally use anything without permission.
Alas there's nothing formal like that in the US or Canada. Synch rights are negotiated on a case by case basis between the owner of the music and persons wishing to use it, whether it's George Lucas negotiating to use it in the soundtrack for the next Start Wars, your local wedding videographer who wants to use the couple's favourite popular song, or a student like Glenn. One publisher might say to him "Go ahead, be our guest as long as you give us credit," another might say "Sure, for $10,000" and another might say "Absolutely no way will you be allowed to use it, at any price" and all three would be acting perfectly within their rights to do so. It's strictly up to the copyright owner and the negotiating skills of the concerned parties. "Fair Use" is intended to define those very few, very limited, types of usage such as academic research and news reporting where a compelling public interest outweighs private property rights.

My understanding of the history and legal traditions (and perhaps some of our more learned legal minds can correct me if I'm wrong) is that over on your side of the Pond, private property theoretically is "owned" by grant of and with the permission of the Crown. As such the Crown can step in and say that someone is permitted to use your property under XXX circumstances because the rights of the Crown to grant permission to use the property trumps your rights as its individual owner to deny it. In the US, the "crown" ie, the government itself, and any powers it exerts, theoretically only exists by the collective permission of the private individual citizens, originally private property owners, a complete 180 degree reversal in the direction of the flow of power and rights of ownership, and there has to be an extremely compelling reason for government to seek to usurp those private property rights. Here in Canada we kind of straddle the fence, not completely one way or the other, but tending a little more toward the British tradition. For example, in the States works created with taxpayer money, like the Hubble telescope photographs or maps published by the government, are public domain and anyone can freely reproduce them without permission or royalty payment. In Canada and the UK, works created with taxpayer money are copyright by the Crown and one must obtain permission (and usually pay a fee) to reproduce and distribute copies of them. For example, back in the 1970s an acquaintance of mine made a nice little sum by purchasing a copy of the court transcript of the Patty Hearst trial and releasing it for newstand sale as a book - completely legal because as an official government document produced by taxpayer money the transcript was public domain, freely available to anyone who wished a copy and would pay the copying costs and freely reproducable.
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Old January 11th, 2009, 05:09 PM   #15
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Glenn -

Welcome to the wonderful world of IP (intellectual property) law. A good career choice if you're interested in law... 'cause it's a huge mess and virtually guaranteed income.

That said, a couple aspects you also might consider - if an event takes place open and free to the public, where there's a reasonable expectation that someone might be filmed/imaged, releases MAY not be necessary, but keeping in mind that with schools and minors this may or may not be the case anymore - paranoia and actual incidents have made it quite difficult to know what the policies are, and what will or will not violate them...

We'd all like to live in a sensible small town where a bright young man (or some old semi retired guy, or whatever) who wants to do something nice and good can go out and use his talents to promote the good things that are happening, maybe make a few bucks to help recoup his costs, and make good quality videos for all the people who don't have the equipment, inclination, or required skill to make a decent presentation... so everyone has a nice memento of their "15 minutes of fame" even if it's just a small town parade.

Unfortunately, that's where we'd LIKE to live. It doesn't exist. As you're finding out, someone sees an "opportunity" to make a buck or two more and steal someone else's skill, talent, image, or intellectual property, and pops in to grab the goodies. You may in the end decide not to give copies of your work to anyone, or do anyone any "favors" - there's an old saying that goes something like "no good deed goes unpunished". Taking advantage of someone because they are younger/poorer/less educated/different is all too common, so you've gained an education far beyond your years. Don't let it bug you too much though, find your own path to use your own talent and skills, it'll pay off.



As a general observation, the rise of the small HD video camera (along with camera phones and all manner of other inexpensive imaging/recording equipment) has in a few short years redefined "expectation of privacy" - you really can't expect to have any, anywhere, except MAYBE in your own private residence, or if you live in the middle of nowhere (and I can still see your house on Google maps... would ya please mow your lawn already... he he he). Rather than improve peoples behavior, IMO we've become a bunch of slobbering idiots fighting over scraps of meat while trying desperately to deny the reality of the situation <rant mode off>.


Where this intersects with IP law is that unless one takes extreme precautions (banning all recording equipment from any "performance", along with fingernail clippers and toiletry items), it's a tough sell to say that you "own" the rights to prevent someone from shooting a video, taking a picture, recording a performance and using it for personal use... and then I have to argue that if it can be shot for "personal use" by anyone there, it gets really spurious to say that ONE person can't shoot and make copies for others (the "for profit" part gets sticky, but how much are you making in this sort of videography... c'mon, you'd prolly get higher hourly wages greeting at Wally-world!).

It's not like there's huge commercial potential unless someone does something funny enough to send in to one of those gag video shows... even then, it's just a visual "joke", anyone own a copyright to a "joke"? Nope? OK, so let's admit that the commercial potential of these local/special interest videos is pretty darn SMALL... and the "value" is pretty limited. Yet just because there's SOME value, or potential value, or theoretical value, it starts a tempest in a teapot.

In a world where most of copyright law still refers to "phongraph recordings", and everything in IP is primarily now nothing more than 1's and 0's creatively arranged and displayed... it's pretty obvious we're behind the times, no wonder the US is having some issues. We're in the heat of the digital revolution, but we're still trying to deal with it in "industrial revolution" terms, ideas and concepts!! Interesting times, to be sure!

Hope this helps add perspective, if nothing else it could make a pretty good outline for your next term paper...
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