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

[Elk]

"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."

 

Legality is not up to "music companies" and, in fact, they have expressly stated they are more open to reproductions for personal use than the law currently allows. If you want the law changed, speak with your Congressman.

 

"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."

 

Both sides are at least equally responsible. When copies were made in real time, such as on cassette, the industry was not very aggressive. Once copies were quick to make, infinitely reproducible and made universally available the industry had reason to worry.

 

We all know people who have music libraries consisting primarily of illicit copies. Many college campuses found that Napster was taking up over two-thirds of their entire network bandwidth - this wasn't trivial "I'm checking out a new band," but rather wholecloth empty-the-vaults theft.

 

The rationalizations to justify IP theft are fascinating in how self-serving they are:

 

"I don't like the sellers, they are slimy, therefore I can steal;"

 

"My product wore out or was replaced with a new one, thus I can steal;"

 

"I like only a couple of tracks of them album, I should steal it;"

 

"The sellers don't trust me, I can steal;"

 

"It's only a virtual copy, not a physical object, what difference does it make?"

 

"If everyone was here they could listen to it, therefore it is OK to make a copy for them when they are gone."

 

No one would make these arguments about a toaster or a car:

 

"My toaster broke, it was junk and the industry replaced it with a new version, it was designed to wear out, I couldn't return it after six months when it failed, a new technology of toaster oven is available, others steal and the toaster industry doesn't trust me. I don't like GE, it's a big, nasty corporation that wants to make money. Bastards! I want a toaster at both my house and when I visit my girlfriend."

 

"Bingo! I am entitled to steal a toaster."

 

If the product the industry is offering worthless, we wouldn't want it. As consumers we have sent the opposite message - the music is good, we want it no matter what - we will even steal it.

 

 

 

 

 

[Elk]

"Can I keep a copy of my music on my girlfriend's computer to listen to when I visit her?"

 

How is this question any different than all the others in the same vein? It's an obvious "no."

 

Easy, legal solution: load your iThingee with the music of your choice and bring it along. No IP owner will object.

 

[Akapod]

And is there a better term now that labels don't make records?

 

I think I would offer the music for download without an attempt at DRM.

 

I would acknowledge that there would be some pirating going on, but I would hope that there would be enough paying fans to keep things going. And I'd hope that some of that pirating would develop new fans (and that a lot of folks just wouldn't want to buy the music in first place).

 

I think I would also try to undercut the pricing of the major labels, so the fans would know we were trying to get them a good deal.

 

And I'd want to offer 24/96 files at a slight premium -- maybe equal to what the major labels charge for AAC/MP3 files.

 

This may well be naive, but Louis C.K. recently sold a video of his live act for $5 a shot, and had made more than a million. As he notes on his web site, "No DRM, no regional restrictions, no crap. You can download this file, play it as much as you like, burn it to a DVD, whatever."

 

[Akapod]

Both sides are at least equally responsible. When copies were made in real time, such as on cassette, the industry was not very aggressive. Once copies were quick to make, infinitely reproducible and made universally available the industry had reason to worry.

 

I don't think that's true. I'm old enough to remember when cassettes were being heralded as the killer of the music industry, and the RIAA tried to get a surcharge affixed to the sale of every tape. (They succeeded in doing so with CD-Rs, but I don't know anybody who used them.)

 

In fact, as this infographic shows, the entertainment industry has always felt threatened by technological change.

 

I should note that, as with most infographics, no sources are given so it's pretty hard to fact-check. But the Jack Valenti quote -- "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone -- actually come from his testimony before a House committee.

 

But I do think the current situation is different, due to our ability to make perfect copies. The genie, however, is out of the bottle, and he's not going back in, regardless of what laws are in place.

 

One of my pet peeves is how the RIAA tries to calculate damages, as they view each unauthorized copy as a lost sale. A teenager who blow his allowance every week at the iTunes store does $0 damage to the recording companies by torrenting other music; he couldn't afford the extra music in the first place.

 

And I do know people who copied whole hard drives full of music -- but they end up only listening to a fraction of it. All of the songs they didn't listen to can't count as damages.

 

I acknowledge that piracy is a problem; I just don't know how big it is. But it's not as big a problem as the RIAA wants you to think. And the current system -- where redbook quality files are only available in a physical format, which I then have to rip, and then "dispose" of the CD -- is ludicrous. I would love to be able to download 16/44.1 files from iTunes, and I'd pay more to get 24/96. But I can't, because the record companies are worried that some (many?) people will pirate them. But they already do so, and will continue to do so. So this policy only ends up hurting the fans.

 

[Jud]

Elk is certainly right on the law, and I think Akapod makes some good points on how the industry relates to its customers. The solution, I think, may lie in a more consumer oriented approach by industry that will remove most motivation for theft. More later when I can type on a real keyboard.

 

[Mark Powell]

Often you don't have to buy anything. Just take your laptop around, which lots of us use for music anyway.

 

No harder than taking a small case of CDs.

 

And isn't loading an iThingee with a duplicate of what you have on another box nearly as criminal as mass murder anyway? You have 'copied' some music. Theft! Theft! Theft!

 

You might even be so utterly evil as to leave the iThingee with her. Osama Bin Laden? Angel compared to you.

 

[Kimo]

Dicta is no less potent authority, necessarily, just less compelling. I contend that should the issue ever be presented, the court's statements indicate a strong likelihood that the copying of a legally purchased music cd, for the personal use of the buyer, would be found to be fair use and not an infringement. Furthermore, I believe that the industry would prefer not to take a chance on the court clearly stating this in an opinion. Best to tell us all that we are stealing under the law, but its okay for now, because we let you.

 

This really would have little to do with the clearly illegal and unethical practice of downloading material that otherwise would have to be purchased.

 

Revise 108, or just trash it, and slap a small tax on every computer drive sold. Yes, we would all be paying a little to cover the theft of others, but it wouldn't be the first time. Zero chance of this ever happening, right?

 

[maltby]

"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.

 

 

 

 

Elk-

 

I am assuming it would also be unethical and/or "IP theft" for Richard Ashcroft, Andrew Oldham, Mick Jagger, Keith Richards and any still living members of the Staple Singers to buy, rip and then resell Bittersweet Symphony.

 

 

 

 

[Elk]

"I don't think that's true. I'm old enough to remember when cassettes were being heralded as the killer of the music industry, and the RIAA tried to get a surcharge affixed to the sale of every tape."

 

I didn't mean to imply that the industry did nothing, which is why I wrote "the industry was not very aggressive." It limited its efforts to lobbying. We are in agreement that the current situation of fast, perfect copies is very different for the industry.

 

"One of my pet peeves is how the RIAA tries to calculate damages, as they view each unauthorized copy as a lost sale."

 

This makes sense however. If you steal someone's car offered for sale, the loss he sustained is not a measure of whether the thief would/could otherwise buy the car. The loss is the value of the car, what was taken. A digital file is no different. If you don't want to be charged with the value of the item, don't steal it.

 

"And the current system -- where redbook quality files are only available in a physical format, which I then have to rip, and then "dispose" of the CD -- is ludicrous."

 

16/44 should also be downloadable. I suspect the industry hoped that limiting downloads to MP3s would help eliminate piracy of CDs. With compressed formats and broadband this is a lost hope.

 

 

 

[Julf]

"If you steal someone's car offered for sale, the loss he sustained is not a measure of whether the thief would/could otherwise buy the car. The loss is the value of the car, what was taken. A digital file is no different."

 

Well, yes, it is. If somebody makes an unauthorized copy of a file, it doesn't change the value of the original file (apart from slightly reducing the potential market for it). If somebody steals my car, it reduces the value of the car for me to a fairly significant extent.

 

 

[Mark Powell]

Any corporation who does not have a customer based approach inevitably fails sooner or later. The less they have that approach the sooner it occurs.

 

The music industry is simply destroying its own business by all this total guff about laws, taxes on media (they tried that here, didn't work), and screaming theft or piracy all the time. It bores governments, so they do nothing, and it annoys customers, both actual and potential.

 

I am largely responsible for all this 'How many angels can dance on the head of a pin' barrack-room lawyer stuff that this thread is now scraping the bottom of the barrel with. I mentioned that I ripped a CD or two from the local library on another thread, now transferred here. Big miskake.

 

[Akapod]

The car analogy was addressed by Matt Yglesias/Slate recently.

 

http://www.slate.com/blogs/moneybox/2011/12/15/piracy_is_a_form_of_theft_and_copyright_infringement_is_neither.html

 

" If I steal your car then you don't have a car anymore, whereas if I duplicate a digital media file we both end up with it. The harm in the duplicating is supposed to be that by duplicating content that Fox Filmed Entertainment owns the copyright to, I'm depriving Tom Rothman of some revenue that he might have gotten had I instead gone out and bought a copy of the content for myself. That's fair enough for Rothman to feel sad about, but it's a totally different kind of thing. I didn't buy DC's animated film of Batman: Year One, and I didn't pirate a copy either; I watched it at a friend's house. The difference between watching a movie with your friend and copying your friend's Blu-ray is that one is legal and one is illegal. But in both cases you watch the movie without paying the copyright owner, and in neither case have you stolen anything from anyone."

 

[Elk]

"Dicta is no less potent authority, necessarily, just less compelling."

 

Not even close. It has no precedential value whatsoever. You can cite dicta (or a dictum) if you would like, but a court has no duty to pay any attention to it. You also run the risk of the court asking you if you have any law supporting your position.

 

Seriously, Kimo, please stop making "factual" assertions that are clearly based only in your Internet searches, not reality. These various holdings, court opinions, procedures, etc. you claim simply don't exist.

 

"Furthermore, I believe that the industry would prefer not to take a chance on the court clearly stating this [ripping of owned copies is not infringement] in an opinion."

 

Nonsense. The industry doesn't care one way or the other if you rip/transcode CDs you own. It has said so. It makes zero difference if a court so holds.

 

Besides, a court will have an opportunity to rule on the issue only if the industry sues someone ripping a CD. This is never going to happen.

 

[Elk]

"If somebody makes an unauthorized copy of a file, it doesn't change the value of the original file (apart from slightly reducing the potential market for it). If somebody steals my car, it reduces the value of the car for me to a fairly significant extent."

 

It is admittedly an imperfect analogy and one we are struggling with as a culture.

 

What is the value of a file, readily copied? Is the value of music as a digital file less than a hardcover book because it can readily be copied?

 

I drew the analogy to illustrate why the proper measure of damages is the loss sustained by the owner - not by the potential gain of the thief. That is, a CD or download sells for $X/copy. The loss by theft of that copy is $X.

 

Keep in mind that the amount is reduced by production costs, etc. Thus the potential actual loss is greater for a download than a physical CD. Ironic in a way.

 

[Elk]

"I am largely responsible for all this 'How many angels can dance on the head of a pin' barrack-room lawyer stuff that this thread is now scraping the bottom of the barrel with. I mentioned that I ripped a CD or two from the local library on another thread, now transferred here."

 

No one is requiring you to visit. It has overall been an open, positive discussion.

 

It is telling that a discussion of what the law actually provides is, to you, " scraping the bottom of the barrel." You have been happy enough here and elsewhere to repeatedly post on the "law" as you imagine it.

 

Off to record a chamber concert. Carry on, all!

 

[Julf]

"Keep in mind that the amount is reduced by production costs, etc. Thus the potential actual loss is greater for a download than a physical CD. Ironic in a way."

 

Not only ironic, but illustrates that the way of determining value is just wrong.

 

[Akapod]

The owner of the copyright has sustained no actual losses, which is why this isn't theft. The owner has lost out on a potential sale -- but that's a lot ... squishier. I simply don't know whether the downloader would, in different circumstances, have purchased the music. If he wouldn't, due to budget to simple lack of interest, then the owner really didn't lose anything at all.

 

One interesting point that Yglesias raises is that your watching a DVD (a kind of performance) at my house is fine. But I can'l legally make you a copy for you to watch later at your home.

 

 

 

[Kimo]

According to you, the internet cannot be trusted. To hell with U.S. News and World Report. To hell with the comments that come from the government office itself. May I remind you that with your postings you are now a source of authority on the internet, and an anonymous one at that. Why not say to hell with what Elk writes too?

 

Moreover, you just went into a bit of a tizzy restating my previous statement. Look again what I wrote about authority and what you fired off. That being said, you cannot seriously dismiss the authoritative nature of words of the court just because they may be non binding. What would the appeals courts have to do if everyone took that approach? What would happen to you if you failed to address?

 

"Nonsense. The industry doesn't care one way or the other if you rip/transcode CDs you own. It has said so. It makes zero difference if a court so holds."

 

Are you sure that this came out just right?

 

I have zero connection to the industry. May I ask, as I believe wgscott did originally, what is your connection, if any? Sorry, if you have already mentioned it and I read over it.

 

 

 

[Mark Powell]

And my comment about have you broken the law by leaving your suggestec iThingee with your girlfriend, which of course is not your personal use, just shows how utterly absurd the laws can be, applied or not.

 

Discussing 'how many angels can dance on the head of a pin' is what lawyers mainly do. At everyone else's expense.

 

[Kimo]

"Discussing 'how many angels can dance on the head of a pin' is what lawyers mainly do. At everyone else's expense."

 

They do it at their own expense as well. Big student loans, long hours, no real job security in private practice, high rates of divorce and alcoholism, not much respect from the general public or even other lawyers for that matter. Everyone pays.

 

Do we even know if angles can dance? Wouldn't the whole wing thing preclude the development of this?

 

[Akapod]

... is what music are the angels dancing to, and do they have an authorized copy.

 

[Kimo]

The music must be divine and the copy must be authorized, since angels must follow God's will. They give up the whole angel thing, if they do otherwise. That case was decided long ago, and as I understand it no appeal will be taking place any time soon.

 

Then again, the movie "Heaven Can Wait" was based on things not being done quiet right by an angel, so I don't know. Maybe, one can chime in.

 

[Mark Powell]

"Not much respect from the general public" is incorrect

 

But quite close.

 

 

 

[Jud]

The owner of the copyright has sustained no actual losses, which is why this isn't theft.

 

Let's not tiresomely reinvent the wheel. It is unauthorized copying or use of copyrighted material, not literal theft. The appropriate measure of damages for unauthorized copying or use of copyrighted material, e.g. software, has been determined by many, many court cases.

 

[Jud]

According to you, the internet cannot be trusted. To hell with U.S. News and World Report. To hell with the comments that come from the government office itself. May I remind you that with your postings you are now a source of authority on the internet, and an anonymous one at that. Why not say to hell with what Elk writes too?

 

I'm an attorney who has taken copyright cases to court. (No, not some kid ripping music. A worldwide corporation excerpting someone's book for the material in one of its advertising pamphlets without authorization or payment; and a group of folks in a warehouse with cassette duplicating machines copying a small Tex-Mex label's recordings, selling them, and pocketing all the money.)

 

Kimo, as far as the actual law of copyright is concerned, Elk is right and you are wrong, full stop.

 

This certainly doesn't lessen the value of your opinions on what the relationship of recording industry and consumers should be, but I do think you ought to take the opportunity to learn from Elk what the law is.