Are the Grey Tuesday protesters protected by fair use?
Fair use generally refers to the federal copyright law exception contained in Section 107 of the Copyright Act. Because the White Album is not protectible under federal copyright law, fair use is not directly applicable.
Voluntarily creating collecting societies like ASCAP, BMI and SESAC was how songwriters brought broadcast radio in from the copyright cold in the first half of the twentieth century.
Songwriters originally viewed radio exactly the way the music industry today views KaZaA users -- as pirates. After trying to sue radio out of existence, the songwriters ultimately got together to form ASCAP (and later BMI and SESAC). Radio stations interested in broadcasting music stepped up, paid a fee, and in return got to play whatever music they liked, using whatever equipment worked best. Today, the performing-rights societies ASCAP and BMI collect money and pay out millions annually to their artists. Even though these collecting societies get a fair bit of criticism, there's no question that the system that has evolved for radio is preferable to one based on trying to sue radio out of existence one broadcaster at a time.
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