House of Representatives
Subcommittee on Courts, Intellectual Property, and the Internet
“The Scope of Fair Use”
David Lowery Oral Testimony and Notes
January 28th 2014
Chairman Goodlatte, Chairman Coble, Ranking Member, and Members of the Subcommittee:
My name is David Lowery and I am a mathematician, writer, musician, producer and entrepreneur based in Richmond, VA and Athens, GA. I also teach music business finance at the University of Georgia.
Thank you for this opportunity to speak with you today about the scope of fair use. The rise of the Internet corresponds with recent attention devoted to fair use as an excuse for trumping the rights of authors established both in the U.S. and other countries. This attention comes from technology companies, commentators, lobbyists and some parts of the academy.
I am not concerned with parody, commentary, criticism, documentary filmmakers or research. These are legitimate fair use categories. I am concerned with an illegal copy that masquerades as a “fair use”, but is really just a copy. This masquerade trivializes legitimate fair use categories and creates conflict where there need be none.
These interpretations of “fair use” have become important to my daily life as a singer songwriter. There are attempts by certain websites and commercial services to pass off as fair use versions of my work that are indistinguishable from licensed copies of my work. As I will demonstrate, these unlicensed copies compete directly with licensed instances of my work. Yet, as a professional singer songwriter, I believe the “fair use” doctrine as intended by Congress is working in the music industry and should not be expanded.
Sampling and remixing is one arena where there has been a push for expanded fair use because of some urgent need. This defies logic as there is no emergency. For example, Hip Hop relies on samples of other artists works. There exists robust market based mechanism for licensing these samples and Hip Hop has become the most popular form of music on the planet without expanded fair use. Don’t fix it if it ain’t broke. I go into this in great detail in my written testimony.
Another arena is song lyrics. Some commentators have suggested that sites that reprint song lyrics with annotations or “meanings” may be covered by the “fair use” doctrine. I have personally experienced the unauthorized use of my lyrics in one of the most famous lyrics “annotation sites, RapGenius. Exhibit 1 shows an example from this lyric annotations site.
I research lyric sites as part of my academic work at the University of Georgia and produce the “UGA top 50 Undesirable Lyric Website List.” After I published my most recent update to the list which placed RapGenius at number 1, I observed that the account of “editor in chief” of RapGenius transcribed the lyrics of my song “Low” and began annotation of the lyrics. The annotations are invisible in the exhibit; they appear only as hyperlinks to pop up windows. Note these links could refer to anything.
How is this use any different from the use of my lyrics on a non-annotated and licensed site (Exhibit 2)? The RapGenius instance of my lyrics is nearly identical. How is it “Fair Use?” It competes directly with the revenue I receive from the licensed site. Following this logic I could reprint an entire book and occasionally provide a hyperlink to the definition of a word and that would be “Fair Use”.
Indeed the owners of RapGenius seem to agree that their use is not “fair use” as evidenced by their recently completed licensing deals with Sony/ATV Music and Universal.
My final point before thanking the Subcommittee for this opportunity to speak today, is, what’s so hard about asking permission? As an artist I only expect to be treated as I would treat other artists. I believe that permission, or the legitimacy of consent, and doing unto others are the foundations of civilization. The rights holders have never been easier to find. Millions of recordings can be identified with a smartphone app or looked up in a public database all at no charge. It just takes a little effort.
In conclusion, I respectfully request that the Members of the Subcommittee review the practical history of the application of the fair use defense to see that it is
working as intended. I hope you will agree with me that no legislative expansion or government intervention is needed at this time.
Thank you very much.
Exhibit 1 and 2