“Copyright” without “copying”

July 17th, 2008  |  Tags: , ,

Ben Fritz writes about Lips, a newly-announced karaoke video game. Lips is notable because it will apparently allow players to plug their iPod into their Xbox and sing along with DRM-free songs from their personal music libraries. (It is also compatible with Microsoft’s Zune, which should make several dozen people very happy.)

Fritz wonders how the music industry, who currently realize royalties from the inclusion of songs in video games (and especially as paid downloadable content for music games), will react to this:

And on the face of it, it doesn’t seem like there’s a reason why the source of the music (my iPod vs the game disc) should [a]ffect who gets paid. Half the people who bought “Guitar Hero: Aerosmith” may already own lots of Aerosmith CDs, but that doesn’t mean Activision got out of paying to use the songs. Making the song into a game is arguably a transformative use for commercial gain.

Well, the legal reason why it doesn’t matter is that you aren’t actually copying anything when you play a song from your iPod. Copyright only governs distribution; you can sing along with, remix, or generally fold, spindle, and mutilate copyrighted works as much as you want as long as you keep the end results to yourself. The reason why Activation et al. have paid royalties is that they are actually distributing the original songs (or — in the case of some songs in the Guitar Hero games — that they are distributing recordings of copyrighted compositions). There isn’t a provision in copyright law stating that someone other than the copyright holder may distribute work X in format Z to me if I already own work X in format Y. With the Lips model, there is no distribution, and since the game only works with DRM-free files, the DMCA (which criminalizes defeating copy protection even if no copyright infringement occurs) doesn’t come into play.

Microsoft already allows Xbox users to play their own digital music (from CD or iPod) along with other video games. Incorporating what is essentially a sophisticated music player into a music game does not infringe upon any copyrights. As Fritz indicates, the more interesting question is political, not legal: how will this sort of technology impact the increasingly-strained relationships between rights holders and technology companies? Certainly the RIAA could try and insist on a check for every sale of Lips; it wouldn’t be the first time they’ve done something like that, and Microsoft might not have a strong position to argue from.