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

[wgscott]

The law can be changed or overturned. Even the US Constitution is occasionally amended.

 

[Mark Powell]

You live in a democracy (well, sort of). The laws merely codify the generally agreed behaviour of that society, musicians included. If everyone is doing it, whatever 'it' might be, your question would simply not come up at all.

 

 

 

[crisnee]

Paul, no matter the legalities, any cd/dvd etc. destroyed by fire or other disaster that I have a backup of, I would feel perfectly fine about using and making further copies of. I bought the MUSIC, whether a download or on plastic. I'm pretty sure you wouldn't question keeping a copy of a download you purchased, would you? Or would you decide well the copy burned (if it did) but I still have the original so I'm cool or I'm not cool because the original burned (of course you'd have to be able to discern the copy from the original).

 

Here's some deeper murk. Consider the following scenarios:

 

1. I get copies or accept copies from friends of music that I would under no circumstances buy because I can't afford it and don't love it. Let's say I have to restrict myself to buying only music I really love because I'm so poor.

 

So, if I'm not lying to myself about what I'm able to afford, is this unethical? Who's being harmed? If I have illegal copies or not, at worst the musician or record company gets nothing. If I don't accept the copies I'M hurt, boo hoo. However, if I do accept the copies, there is a possibility that the musicians et al, will get some remuneration, because I may fall in love with some of the music and buy a bit of it.

 

2. I want to introduce my friends to so new music so I give copies of a variety of music to them because I'm sure they will like it, and eventually buy some of it at retail. In this case it seems to me that the music industry will be better off.

 

I've done this a number of times over the years and friends have done the same for me and it's always lead to purchases. Of course we didn't send each other complete copies of an artist's repertoire or anything remotely close to that, just nice engaging compilations. Illegal I suppose, but not unethical in my world, just fun and good for the music business all around, I would think.

 

-Chris

 

 

[joelha]

Chris,

 

In both cases you mention, the music industry doesn't believe it will be better off which is why they don't want their music to be copied.

 

Why do we believe we have more right to say what's good for them than they do? They hold the copyrights, not us. Even if we're right and they're wrong about what's good for them, that still doesn't give us the right to overrule them.

 

If everyone determined what they were entitled to on the basis of what we thought was better for another party, we wouldn't be as happy with the society we lived in.

 

Joel

 

[Paul R]

You make a lot of sense. I feel uncomfortable trading music around that way, but whether that is because of an overly complex conscious or just a a desire not to have a close encounter of the legal kind with the RIAA or one of it's members, I cannot honestly say.

 

On the other paw, what would make the most sense to me is simply to open my library over the network to those few friends. Nothing gets copied, but they can hear the music on my dime.

 

Of course, I think that idea horrifies the RIAA and I have no idea at all what the legal position of that is. I look at it like lending a friend a CD or a Book myself, except in this case, the music always stays in my possession.

 

-Paul

 

 

[Elk]

"You live in a democracy (well, sort of). The laws merely codify the generally agreed behaviour of that society, musicians included."

 

We in the U.S. actually live in a Republic, but leaving that aside, laws serve many purposes. Some reflect a desire for simple order, such as speed limits and parking restrictions. There is little morality involved. Others are critically important to a functioning society such as prescriptions on assault. Still others are aspirational.

 

Law, science, the arts are all human institutions that can be improved upon.

 

[Elk]

"On the other paw, what would make the most sense to me is simply to open my library over the network to those few friends. Nothing gets copied, but they can hear the music on my dime."

 

There is a strong similarity to lending a book. On the other hoof, there is the possibility that you could listen to the same music at the same time. Now there is a clear infringement even if making the copy itself is acceptable.

 

I like the idea of enabling sharing in a fashion where you can make your copy available to a specific person and during this time your access is restricted, a high-tech loan.

 

This is possible with many books on the Kindle. You can loan your book to another but cannot read it at the same time. This is the equivalent to loaning it out.

 

 

 

[Mark Powell]

Using Windows7 Professional (on the 'server') and its Remote Desktop function.

 

Infringement? Bet the law does not specifically state that you have to be sat next to each other

 

[Elk]

In both the UK and US the consumer has no right to copy a CD in any form, any transfer of its contents to a computer infringes upon the copyright holder's right of exclusive reproduction.

 

But you already know this.

 

It is clear this thread has run its course.

 

[Kimo]

that the copying of a song from a CD that one purchased to one's own Ipod for one's own personal use is an infringement. Please provide authority, which states that this would not constitute fair use. I have not been able to find any.

 

Otherwise, it would seem far from definitive.

 

The sing song about the owner not wanting to bother to enforce his rights sounds more political than neutral, absent such a holding.

 

[Paul R]

The "enforcement" part is what I would think untenable. It means you have to cede control of your library to a third party.

 

I would rather see it that you could only share with two or three people simultaneously, and leave it up the user to comply.

 

Perhaps lending a book was the wrong analogy - more like inviting a few friends over to listen to a new album.

 

What does it matter if instead of being in my living room, they are scattered across the globe? And a step further, what does it matter if they time shift the playback from my system to accommodate their local schedules?

 

Or maybe, just perhaps, both scenarios. Lend like a book for a long period, or play together over a short period of time.

 

Without some sort of concurrent agreement, you might run into a sticky situation with those of us who stream music around the house to more than one location... no?

 

-Paul

 

 

[Elk]

"The "enforcement" part is what I would think untenable. It means you have to cede control of your library to a third party."

 

Paul, this is indeed one of the difficulties. It is also one of the dilemmas of putting oneself in the position of a legitimate retailer of "used" previously-owned digital recordings. Just how does one establish that the seller of the used download didn't retain a copy for himself?

 

It was an easy question with respect to physical copy of a book. It is difficult to replicate even a paperback. We can all tell whether a book is the original printed copy. There is no such guarantee with respect to a downloaded file.

 

 

 

[Elk]

". . . the copying of a song from a CD that one purchased to one's own Ipod for one's own personal use is an infringement. Please provide authority, which states that this would not constitute fair use."

 

To resolve the question, you need to approach it from the opposite direction. To assert ripping a CD constitutes Fair Use, you need to find an explicit holding by a federal court declaring this to be the case.

 

We do not need a holding explicitly stating that copying a CD is infringement to know that it is illegal. The Copyright Act grants the copyright holder exclusive right to make reproductions. *Any* copying is infringement unless there is an express exemption. Again, Fair Use is an affirmative defense to an allegation of infringement, not a set of rights.

 

I don't understand your comment about "the sing song" with respect to the RIAA's statements that it will not enforce its rights against those that rip CDs for personal use. They represent the copyright holders. If they decide they are not going to bring claims of infringement for this activity you are free to engage in it.

 

The activity remains infringement according to the strict terms of the statute, but the copyright owner has provided you with safe harbor to rip and transcode. That is, you will not be sued.

 

In the absence of such a lawsuit, the court will never have an opportunity to rule on whether ripping a CD is Fair Use. Thus, I do not expect we'll ever see such a holding.

 

[Paul R]

The activity remains infringement according to the strict terms of the statute, but the copyright owner has provided you with safe harbor to rip and transcode. That is, you will not be sued.

 

How real is that? Can they change their minds at a later date and decide to sue? If yes, then any "safe harbor" is nothing but the thinnest of illusions. Truly, that is the way it seems to me.

 

Trust a corporation? "Do no evil" is not the average corporate motto!

 

 

[Kimo]

permitted to do anyway.

 

Am I allowed to make a copy of a DVD that I legally purchased for my own personal use, such as viewing on another device, per a most recent holding regarding the fair use of said DVD?

 

Why?

 

Do Cds contain any sort of protection like DVDs?

 

What distinguishes CDs from DVDs under the statute? Is there case law that distinguishes these two?

 

What about a DVD-Audio? Would the holding not apply to that protected disc, because it contains only music?

 

 

 

 

 

 

 

 

 

[Kimo]

"Again, Fair Use is an affirmative defense to an allegation of infringement, not a set of rights."

 

Fair use is a limitation of and exception to those rights.

 

[Kimo]

too much.

 

Given recent holdings regarding the doctrine of fair use, I would be greatly surprised if a court were to hold that the making a copy of a CD for one's own personal use would not constitute fair use, while making a copy of a DVD under similar circumstances would.

 

You may feel otherwise. Your input is always appreciated.

 

[Akapod]

Copying CDs

 

It’s okay to copy music onto an analog cassette, but not for commercial purposes.

 

It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.

 

Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

 

The copy is made from an authorized original CD that you legitimately own

 

The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

 

The owners of copyrighted music have the right to use protection technology to allow or prevent copying.

 

Remember, it’s never okay to sell or make commercial use of a copy that you make.

 

Unfortunately, that doesn't add as much clarity as I thought it would.

 

[Elk]

"How real is that? Can they change their minds at a later date and decide to sue? If yes, then any "safe harbor" is nothing but the thinnest of illusions."

 

They could change their minds. However, there is concept in the law called estoppel. This precludes a party from taking advantage of another's reasonable reliance upon previously made statements or actions. For example, MGM has argued before the court that it considers ripping to be acceptable and states this on its website. The court is not going to allow MGM to now go forward with a claim of infringement based upon ripping. It is estopped from doing so.

 

I would thus consider the safe harbor granted by the statements of the RIAA and individual copyrighted holders, such as MGM, to be quite definitive.

 

"I would be greatly surprised if a court were to hold that the making a copy of a CD for one's own personal use would not constitute fair use, while making a copy of a DVD under similar circumstances would."

 

I have not seen a case that clearly holds that a consumer's copying of the DVD constitutes Fair Use. This, of course, doesn't mean that no such case exists. :-)

 

The cases that have addressed the copying of DVDs have been in the context of defeating digital copy protection. These cases, such as RealNetworks, have held the removal of such technology is a violation of the Digital Millennium Copyright Act.

 

There is dicta that "it may" be Fair Use for an individual consumer to store a backup copy of a personally owned DVD, but the actual issue has not been before the court.

 

As I have previously opined, the court may very well hold at some time that a ripped copy of digital media is not infringement. In any event, I have no concern making ripped copies of media I own.

 

[gcorley]

A couple more:

 

1) If I bought a CD with the promise of "perfect sound forever" and it quickly corroded to an unplayable mess due to shoddy production and no replacement was offered, could I then legally download and play an identical copy of my worthless media?

 

2) If I have bought a work of art on cassette or LP and paid all the artists, producers, etc., should I then pay full price for a different media with the same art since the former media was purposely made obsolete?

 

[Elk]

I am sure you know the legal answer to both questions, but great job loading them up with extraneous, emotional hyperbole.

 

And who says vinyl is obsolete? Many of us would disagree.

 

[crisnee]

 

"I am sure you know the legal answer to both questions, but great job loading them up with extraneous, emotional hyperbole. :)"

 

The point and question is not whether it's legal or not. It's all illegal if the music companies can make it so, and they're trying to do so at every turn.

 

The question is should it be legal. If one thinks it should (as I do in many of the possibilities cited) then one also believes it is ethical and one may very well participate in these illegal issues with an easy mind, as long as one is convinced one is not going to get arrested.

 

So, as I said earlier, the ethical question is the interesting one, the legal question is endlessly boring. Nevertheless a few of you folks keep going round and round with it coming upon the same points from only somewhat varied angles.

 

Paul makes some interesting points about playing music for your family and friends at home vs. streaming it to friends. Pretty murky waters there.

 

This whole problem really stems from lack of trust, duh. I think businesses are the main culprit here, although one can argue the chicken/egg bit. There's always going to be a bit of thieving, and businesses know that, and that's probably not what they're worried about. Their lack of trust (and I'm not talking all businesses) and greed in general--we must make a larger profit every year, has them look at consumers with a jaded and hardened eye.

 

"Let's get all we can get out of them." It's an us against them attitude--handily they forget that they and their childrem are also them. If it was "we're all in this together," their attitude would be different. They would see that squeezing us, distrusting us, threatening us, is also doing the same to themselves and their kin.

 

It's pathetic really. If you think how the pop music industry in general has treated its customers and still managed to pretty much keep them in line. They do it by attacking and threatening, thereby keeping customers on the defensive--the customer continues to worry about ethics, while the industry doesn't recognize them in relation to themselves.

 

Here's what they've foisted on us over the years (I realize we're not forced to buy cds, lps etc.).

 

1. Lps with 1-2 good songs on them, have to buy whole album of crap to get them.

 

2. Product is not returnable if opened, unless faulty. IOW, if we don't like it, tough.

 

3. Have to buy reissues in new formats at full price to keep up with technology. Reissuing of already recorded music is much less expensive than.... But the savings were not passed on.

 

4. Had to buy some remasters of reissues to get back to the original recording quality, again at full price.

 

5. Even now, when it is possible to sell tracks of albums separately, many songs are not available unless you buy the whole album--usually the best/most popular songs.

 

6. Hi-res, of once again already recorded music and this time not even on physical media, is higher in price again.

 

7. Remasters of necessarily already recorded music are not sold at a discount and often at a premium.

 

8. We've had to put up with format wars between greedy companies who had no concern for the consumer. Various tape systems, Sacd, DVD-A, etc. Some of us once again buying in, but never at a discount, rather almost always at a premium.

 

So, I ask you, have they stolen from us? No, they haven't. But they've come as close as one can; what saves them is that we're not forced to like and buy music.

 

If I were to really do up this subject, it would be much longer and more detailed. Instead I'll sum up.

 

Once the pop music industry became fairly big business they distrusted the consumer (like most big businesses). That lead to the "we'll sell them anything we can" attitude, and that instilled distrust in the consumer. Then copying of music became somewhat viable with casettes. A bit more distrust all around. And finally the digital age, now the music industry finally saw the clear and present enemy it always knew was there, and paranoia and with shooting itself in foot set in.

 

Unfortunately I think this is the way most big business works, not just the pop music industry. It's just that we don't copy shampoo or toilet paper. Most businesses are driven by the need to always expand (because of Wall Street) so they sell us a load of crap, much of the time. They've been making NEW and IMPROVED Tide and Zit Cream for at least 50 years, still clothes aren't pristine, nor are young faces. Obviously they don't trust us, since they can't tell us the truth, and we'd have to be fools to believe them.

 

Whew Boy, I'm glad I got that off my chest. Now I can copy a cd from my local library with a new ease of mind. Just Kidding Officer!

 

-Chris

 

 

 

 

[Akapod]

This Business Insider article suggests that one of the problems with the music industry is the success iTunes has had with allowing people to buy singles instead of albums.

 

[gcorley]

Let me apologize for referring to LPs as obsolete - I don't actually believe that and was referring to what I had been told as an impressionable teenager!

 

I'm really not at all concerned with the legality side (I do lots of illegal things), but ethics are extremely important to me.

 

One more: This one came from a lawyer (Intellectual Property) - Can I keep a copy of my music on my girlfriend's computer to listen to when I visit her?

 

[rmva]

This thread made me "L.O.L." (is that okay?, I own all of my Miles Davises!)