Legal and ethical questions regarding the ripping, storage, donation, resale, etc., of CDs

[jhwalker]

Makes sense to me that the *process* by which DNA or protein is sequenced could be patented, not the content of the sequence itself which, as you say, is naturally-occurring.

 

[Kimo]

"The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & ©.

 

Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction."

 

Yes to the transfer upon your death. Yes to the transfer from your heirs to the the purchaser of the original copy. Unsure regarding the copies. If they constitute a fair use, then that would appear to be a legal right that transferred with ownership of the physical product. (Still unsure though under this scenario) If they constitute an infringement, than certainly not.

 

[Elk]

 

"If I buy a used CD, is that actually legal? If so, how does that work?"

 

-The physical CD can be bought and sold like any other product.

 

"If I buy a Cd, and it does not work for some reason, am I within my rights to ask a friend to try and play it on his system? Rip it for me?"

 

-Absolutely. The only limitation is that he cannot keep the CD and/or rip if you keep either. Of course, you can give him the CD and he can keep the rip as well.

 

"How about if that CD is a download instead?"

 

-Unless specific additional terms are attached to the purchase of the download, the download itself can be transferred as if it were physical property. You cannot retain a copy however.

 

"Say a fire wipes out my home and the physical CDs. What is the ethical position then of using my backups?"

 

-Ethically, most of us would likely say no problem. Legally, we do not have the right to make rips of CDs as they are unauthorized copies. As a practical matter, most owners of CD copyrights have stated that this is of no concern to them so feel free to do so.

 

"What if I rip my CDs, and then I die? (I predict, sooner or later, this will come true.)"

"Can my next of kin legally take the CDs (or the rips)? Can they be sold at a car boot sale along with all my other personal possessions?"

 

-Your survivors can of course take the physical CDs. The rips will be treated exactly the same as if you were still alive. The copyright owner does not care if the individual who has physical custody of the CD also has a ripped copy.

 

[Paul R]

Well, insurance may or may not cover the cost of replacing the CDs. And it is mighty hard to replace some of them, as they are no longer published of course.

 

I probably would not claim them and use the backups myself, claiming the right to the license to use the music is still retained, even when the original media is destroyed.

 

That's a different situation from given away to the Goodwill or sold of course.

 

Legally, however, it is my understanding that isn't the case. Your only backup option is to burn each CD to another physical CD, which of course, has licensing costs already built into the cost of the blank CD.

 

When you have several thousand CD's, the cost adds up very rapidly indeed. A thousand CD's at $15/each is $15,000. How many of us have two, three, or even four or more thousand CD's.

 

Then there is vinyl...

 

 

 

[Elk]

"Just because fair use is a defense, it doesn't mean it is necessarily less of a right."

 

The distinction between an affirmative defense and a free standing pre-existing right is a little tricky.

 

You have the right to free speech. It is yours and exists independently of any other act or law. Yes, there are exceptions, such as slander and yelling "fire" in a crowded theater. Yet, you still retain the right itself.

 

You do not have the right to kill another. You do however have an affirmative defense to murder by asserting self-defense if the circumstances warrant. Fair Use is similarly an affirmative defense to a claim of infringement. It does not provide you with specific rights per se, but a defense.

 

[Elk]

"Legally, however, it is my understanding that isn't the case. Your only backup option is to burn each CD to another physical CD, which of course, has licensing costs already built into the cost of the blank CD."

 

Licensing is not already built into the cost of the CD blank unless you actually purchased CDs explicitly made for copying music which are sold at a premium. I have not seen these on the market for years.

 

We do not have the legal right to make a backup of a music CD in any form. The RIAA and others have stated however that is acceptable to them if we rip a copy and/or transcode it for personal use.

 

I certainly would not hesitate to rip a backup set and keep it off site. It is highly unlikely any copyright holder would sue for infringement under this circumstance.

 

[Kimo]

"The distinction between an affirmative defense and a free standing pre-existing right is a little tricky," and sometimes a lot of cost.

 

And since none have the right to even appear in public, if a certain elected executive so deems it, the whole rights thing is losing a little luster.

 

[Paul R]

It is my understanding that we do have a right to make a backup of any media we purchase, we just don't have the legal right to break any copy protection in pursuit of that goal.

 

A thinly disguised attempt to prevent any copying at all, in my sole and non-professional opinion.

 

As far as I know, every blank CD or DVD out there has a royalty that was paid on it. The royalty is less now than it was in bygone days, but still there. Do you have a reference that it is no longer in the price of blank CDs?

 

-Paul

 

 

[Elk]

"It is my understanding that we do have a right to make a backup of any media we purchase, we just don't have the legal right to break any copy protection in pursuit of that goal."

 

We do not have that expressed right with respect to all media. There are some specific exceptions for computer programs, especially those which will work only if transcoded to a specific device, etc. Again, however, major music copyright holders have made clear they have no objection to consumer copying of music for private use.

 

More interestingly in my mind, is that it is not illegal for an end-use consumer to break copy protection. What is illegal is the sale and distribution of software designed for that purpose. of course, this has not prevented the distribution of such software.

 

[Elk]

The royalty on CDs specially made for the purpose of copying music existed as a result of the Audio Home Recording Act, 17 U.S.C. §§ 1001–10 (1992). The Act required that all digital recording devices contain copy protection methods which would preclude recording the DRM protected digital stream unless copied to special media. The special media (defined under the Act as Digital Audio Recording Medium or "DARM") was labeled as such and available only at a premium price as a result of the royalty. DARM CDs were generally labeled "Music CD-R."

 

The Act became irrelevant with the increased popularity of computers and the ability to rip copies on generic computer CDs. Thus it is rare to find blank royalty-included "music" CDs for sale. All that one typically finds are generic CD blanks.

 

[Elk]

"Makes sense to me that the *process* by which DNA or protein is sequenced could be patented, not the content of the sequence itself which, as you say, is naturally-occurring."

 

This is pretty much the state of the law, although the entire area is still in flux.

 

It is clear that a modified genetic sequence is patentable. The mere observation of a natural occurring sequence is not. The most tricky situation is when a natural occurring sequence for disease resistance, as example, is grafted into another natural occurring sequence.

 

Another difficult situation exists when someone discovers a natural sequence which then can be used to manufacture a drug. Some of these drugs existed as natural remedies among indigenous cultures for years. The law is currently struggling with whether this sophisticated commercialization of this knowledge is patentable.

 

[Mark Powell]

More like "How many angels can dance on the head of a pin?" by the minute.

 

[Mark Powell]

To just copy a CD bit for bit, without being concerned in any way about what it contains? I have wondered this for a long time, nothing to do with any copy protection.

 

IE, just copy it, without any 'intelligence'?

 

That way, you are not breaking anything. Not that such was relevant to my original thoughts.

 

Can it be done?

 

[Elk]

"Is it possible To just copy a CD bit for bit, without being concerned in any way about what it contains?"

 

Of course.

 

In fact, in the mid-1980s when the PC was first available this is precisely how copies of DRM protected discs was accomplished. The copying programs were specifically designed to operate outside of the operating system, to ignore the meaning of the underlying code, and to blindly make a copy.

 

[Akapod]

Article 1, Section 8 of the Constitution enumerates the powers of Congress, one of which is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

 

The first purpose of copyright is not to protect the intellectual property rights of artists, but to support the arts (and sciences). By providing some property rights, we hope that people will become musicians, and be able to survive as such.

 

Under the Copyright Act of 1790, the term of protection was fourteen years (with the opportunity to renew for an additional fourteen years). In 1909, those terms were doubled to 28/28. In 1976, the term was changed to life of author plus 50 years (or 75 years for corporate ownership). In 1998, courtesy of Rep. Sonny Bono, the terms got extended again to life plus 70 years (or 95 years after publication/120 years after creation for corporations.

 

For obvious reasons, the 1998 legislation acquired the nickname of Mickey Mouse Protection Act.

 

While we've strayed quite a bit from the original purpose of copyright, that original purpose still seems to me a good way to frame the issue ethically.

 

As to the question from the OP, I basically find it unethical to profit from someone else's work. Giving a rip or CD away seems different to me -- but I'd feel better about giving a rip to a friend than if I was just to make my 2 TB collection available to everyone over the web.

 

At the risk of hijacking the thread, would anyone's answers change in regards to selling/giving away a CD by:

Robert Johnson (dead for 73 years)

Buddy Holly (dead for 52 years)

Amy Winehouse (dead for 1 year)

Beatles (broke up 40 years ago, fabulously rich)

Rolling Stones (still together, fabulously rich)

 

 

[Paul R]

That's pretty much what an ISO file is Mark. Just a virtual copy of the CD, minus the pits.

 

-Paul

 

 

[wgscott]

Probably not with windoze, but unix/linux/OS X has the

 

dd

 

command, which does a low-level copy (and optionally other things, like a byte-swap).

 

More info: http://www.manpagez.com/man/1/dd/

 

[Elk]

There are utilities for Windows which will do this, but nothing native that I recall.

 

I don't recall it even being of issue for C/PM. If you wanted a copy you made one. It just required patience.

 

[wgscott]

http://uranus.chrysocome.net/linux/rawwrite/

 

[maltby]

I bought Neil Young's Greatest Hits CD/DVD A at a used CD store. It was clearly marked on the outside "Promotional Copy-Not for Resale".

Have I broken the law?

 

If I bought a CD with the Verve's Bitter Sweet Symphony on it, ripped it, and then resold the CD, would that be unethical?

 

 

 

[joelha]

A couple of questions which help me determine the ethics of an act are:

 

1. What if I knew my action were going to make the front page of a national newspaper (slow news day, I know)? Would I still choose to do it? (This question is not original to me.)

 

2. What if everyone were to do what I was doing? (This question is also not original to me)

 

My answer to question 1., is "No". Seems to me that I would be double-dipping so to speak by getting the benefit of the music and profiting by it's subsequent sale. All of this would come at a cost to someone else.

 

And I also wouldn't copy and sell a CD because of question 2. because if everyone did it, no one who was supposed to profit from the artist's work would be able to. There would be one sale and then copies for everyone else.

 

Joel

 

[Elk]

"If I bought a CD with the Verve's Bitter Sweet Symphony on it, ripped it, and then resold the CD, would that be unethical?"

 

There is a delicious irony in this question, but now that Abkco has the rights - yes.

 

[Joebah]

Does any of this discussion apply to the ripping and sharing of a vinyl LP? Or is there a thread that already discusses this?

 

[Elk]

The same copyright law applies to vinyl.

 

I am not aware if any major labels have indicated that ripping vinyl for personal use is OK, but I wouldn't be surprised if they take this position.

 

[Jud]

A law that fails to distinguish between these occasional very minor breaches and unambiguously criminal activities is, in my opinion, a dishonest and poorly written law.

 

What if the number of sales lost due to music teachers recording pieces for their students in the US is almost exactly the same as the number of sales lost due to people making physical counterfeit CDs? In fact, as downloads continue to gain popularity, the number of people who bother to counterfeit CDs will, I'm sure, continue to shrink.

 

So if the economic loss to the copyright holder is greater from infractions one would consider less ethically objectionable, does that still make it a "dishonest" and poorly written law?

 

The more important argument to consider is probably the following: How good are you, or any of us, at predicting the future of the economy, unintended consequences, etc.? Should those who write laws be held to an impossible standard of foreseeing every situation to which a law may apply centuries, potentially, in advance?