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

Akapod · February 11, 2012

I'd appreciate your providing more information on this. My understanding was that the statutory damages were included precisely because proving actual damages was so difficult.

And to be clear, we're only talking about situations were the provider of the unauthorized copy had no financial gain.

And my argument isn't about what the law is, but where it should be.

Kimo · February 11, 2012

He is basically saying that the copying of the CD would not constitute fair use. He cannot know this. He is correct in how the mechanics would work, but this doesn't necessarily mean anything with regards to the state of the law.

It is incorrect to imply that dictum would have no bearing on this decision. He cannot know this and it is likely that those statements would be given consideration. They cannot properly be dismissed out of hand.

The basic question remains, is it fair use or is it an infringement?

Now, if Elk is saying that at this point the best read on the law is that it would be an infringement because the defense has not been proven under these specific circumstances and the dictum regarding a very similar medium and situation is not controlling, well then, I could accept that. But, that doesn't appear to me to be what he is saying. That might be technically correct but it doesn't amount to a legal certainty with respect to one's activity.

But, to qualify and for what it is worth, I took one class ages ago in IP. I got it all patent, trademark, copyright and got a good grade. I never discussed any of it since, until I had to deal with a common law trademark issue, and was appalled entirely by the response of a practicing patent attorney. Obviously, I know just enough to get myself in trouble, and to top it off I missed around 4 questions on the LSAT. This just compounds my problem, but if you can provide some additional information as to why this wouldn't constitute fair use I would appreciate it, and I might actually pay attention.

Jud · February 12, 2012

Hey Jud, I could be misunderstanding Elk here

Yes, you are.

For some reason, everyone thinks the profession of lawyering is easy, and the only reason they don't understand it is because those nasty lawyers obfuscate everything. Many fewer folks think this about other professions, e.g., brain surgery. People know brain surgery is full of all sorts of details they haven't taken the time to learn, so they don't *expect* to understand it. Well, so is law. Thus when non-lawyers discuss the law, they tend to miss completely all sorts of critical details.

He is basically saying that the copying of the CD would not constitute fair use.

In fact he is saying almost precisely the opposite. That is why I advised you in my last note to stop concentrating so hard on trying to argue with him, but rather to try to read, understand and learn from what he is saying.

He is saying it might be quite probable that copying a CD *would* constitute fair use, but since you are very, very, unlikely ever to see the issue decided in court, we won't know for sure. That's the whole point of what he was saying about affirmative defenses, which you have managed to completely miss. We never get to the affirmative defense of fair use until someone is sued for a copyright violation. That's almost certainly not going to happen, since the industry has said it won't sue someone ripping his own CDs for his own use. So saying this is fair use is like saying Muhammad Ali was better than Mike Tyson. I might believe that's very probably the case, but we're never going to see the question actually decided.

It is incorrect to imply that dictum would have no bearing on this decision.

Again, you're misunderstanding, and missing critical subtleties. What you said, and what Elk properly disagreed with, is that dicta have "authority." The term "authority" has a precisely defined meaning regarding previous cases. It refers to the part of a decision, generally referred to as the "holding," which a lower court *must* follow, and which the same court will consider itself legally bound by, absent very compelling reasons to change. "Dicta" also has a very precise meaning. Dicta are those parts of a decision or dissent that persuade only to the extent any argument may or may not persuade. They are no more authoritative to a judge than watching Bill O'Reilly or Keith Olbermann talk about a subject on television, or reading what you or I say about it in this forum.

He cannot know this and it is likely that those statements would be given consideration. They cannot properly be dismissed out of hand.

Citing dicta to a judge in court or in a legal brief is not often done, and if it is done it is usually taken as a sign that you have a very weak argument. As Elk mentioned, if you did this you might well be asked if you had any law (meaning any authority, in its precise legal meaning) to support what you were saying. Citing "authority," on the other hand, is vitally important. Failure to cite to a court authority adverse to your own position is an ethical violation (unless opposing counsel has done so).

and to top it off I missed around 4 questions on the LSAT

Hey, I scored this really nifty goal in a soccer game once, so let me tell you how Sir Alec Ferguson is going about it all wrong....

The basic question remains, is it fair use or is it an infringement?

Once again a subtlety is being missed. Fair use is only ever relevant if the facts meet the technical definition of an infringement. If they didn't, the affirmative defense of fair use would be unnecessary. So to make sense, the question really has to be asked as, "Will a court hold that this technical infringement meets the limited exception for fair use?" The answer to that question has already been given to you several times by Elk, and I've repeated it above: It is utterly unlikely a court will ever be given the opportunity to rule on the issue.

Kimo · February 12, 2012

He is most certainly not saying what you just said he said. He states it is an infringement.

Jud · February 12, 2012

...and then give it up as a complete waste.

He states it is an infringement.

Yep. That's the only reason why you'd ever have to consider fair use. If it wasn't at least technically an infringement according to the statute, fair use would never come into it.

Kimo · February 12, 2012

He states it is an infringement but that no one really cares. Later, he refuses to consider the potential success of the argument of fair use.

What did I state 3 posts ago? Did I not just state what I guess that you are now stating?

So, this means that I have been agreeing with you guys the whole time?

While we are at it, you could argue that it wasn't even an infringement in the first place. Fair use is not the only argument that could be made here, but I would prefer not to travel down that path.

And one final question, is it your contention that because it has been identified as an "affirmative defense" it then follows that this means that the defendant has no rights?

That would be a tremendous crock.

Jud · February 12, 2012

Particularly in small-scale situations, actual damages may in fact be less than the statutory amount, or proving them may involve sufficient difficulty, uncertainty, or expense as to make statutory damages attractive.

But just because a provider of unauthorized copies doesn't have direct financial gain doesn't mean there isn't loss to the copyright holder that can be calculated as damages. This becomes more evident at larger scales.

Let me take as a hypothetical example an alteration of recent history. The real situation is that the software behind the Mosaic Web browser, the predecessor of Netscape, was licensed by the Spyglass company, and was then licensed from Spyglass by Microsoft, where it became Internet Explorer. But let's suppose Spyglass copied the Mosaic software rather than licensing it, and that Microsoft then knowingly used it in Internet Explorer. Although Microsoft provided Internet Explorer for free, would it be impossible or even difficult for Netscape to show economic damages (or economic gain to Microsoft resulting from the infringement, though it wouldn't be direct gain from sale of the infringing copies)?

Kimo · February 12, 2012

"Will a court hold that this technical infringement meets the limited exception for fair use?" The answer to that question has already been given to you several times by Elk, and I've repeated it above: It is utterly unlikely a court will ever be given the opportunity to rule on the issue.

So, what would be the likely outcome if this utterly unlikely turn of events comes to pass?

Paul R · February 12, 2012

Hey Jud- does any of this apply or is any of this altered by the $250K threat on the front of almost every DVD? (The FBI and Interpol warnings?)

That isn't strictly music, but it sure seems odd that they seem to be saying copying a DVD for any reason, even non-financial gain reasons can result in some severe penalties.

Call me extremely nervous.

-Paul

P.S. - And believe me, I do appreciate the free legal advice. Let me know if you ever need some custom software or anything like that.

Mark Powell · February 12, 2012

I am not taking the p**s, I would really like to know. 67 years have taught me to take a somewhat jaundiced view of a lot of things. I am not stating any opinions, as you don't seem to like them. Mine, at least.

Jud, Kimo, Elk are lawyers. Not sure about Akapod, but it looks as if he might be. Everyone else has left the room, leaving you lawyers by yourself to argue.

There stands the law. You have all taken courses and passed required examinations. Possibly the same examinitions. Doesn't matter, it is all the same law.

I am a history professor (for the purpose here) There are other history professors. I say "Queen Elizabeth II was born in 1931" (or whenever). We don't endlessly argue about it, its true. As is the law standing there. You can look at it.

You argue, argue, argue. Forever. Everyone else has left to rip their CDs and sell the originals. Or not.

My questions:

Why do you argue?

Why do you think lawyers are held in such low regard?

Kimo · February 12, 2012

I was messing about a bit to see where it might lead. I really can't argue with the procedural stuff, though I gave it sort of a shot. I will stop now.

I never said I was a lawyer.

Mark Powell · February 12, 2012

You are not a lawyer. I was mistaken. Now I know why you answered and the others have not.

Either they are still in bed, or it's because I won't pay a fee.

Not being a lawyer you answered for free. We history professors don't usually charge either!

Kimo · February 12, 2012

Here for example; no discussion of unauthorized enjoyment vs. unauthorized exploitation, no discussion of the relevance of the harm caused by the consumer being diminimis, no discussion of the application of the 4 part test.

If I were a lawyer, would I not clearly see the difference between dictum and authority, since it is obviously so easily spotted? Would I not understand that an affirmative defense is merely a term of art related to the timing upon when a defense is raised, and that it doesn't actually characterize one's rights?

I think I would rather talk about cables from here on out.

Mark Powell · February 12, 2012

Everyone has done cables to death. No one has changed their (fixed) minds, nor learnt anything at all really.

A least here we may learn something, even if it is not useful. I know about the law being not concerned with trivia, but did not know it was also called De Minimis. My friends (I do have one or two) will doubtless be most interested.

Here is something equally non-useful for you, as a present. You probably know it already.

Where three roads met, the ancient Romans put up little notices with local news. Thus, trivia.

Regards.

Kimo · February 12, 2012

I mostly like wgscott's too.

But, from here on out, I will stick to reading, and not waste people's valuable time. Mine is relatively cheap, but I shouldn't presume.

Akapod · February 12, 2012

But I have no experience in copyright, so I didn't think it worth mentioning. If anyone has any questions about mortgage-backed securities or collateralized debt obligations, I'd be happy to entertain those.

Thanks to all who participated. I learned a few thing in this thread.

Jud · February 13, 2012

So, what would be the likely outcome if this utterly unlikely turn of events comes to pass?

I can't answer definitively, and I'll tell you why.

First, there's a saying in the law: "The law is what a judge says it is." Courts have issued rulings that have utterly dumbfounded me in the past, and I'm sure they will again. So even if I had a strong inclination regarding the outcome, I can't tell you that it's necessarily likely a court would decide the same way.

Second, as my last statement indicates, I don't have a strong inclination about how the decision would come down. Of course when you think about just making a copy of a song you already own for your own personal use, that seems like a "fair" use. But think about it on the scale on which it's actually taking place. The folks on this forum often have thousands of CDs in their personal collections - tens of thousands of musical pieces. And many of us have transferred a good portion of them to computer formats. That's great, it's convenient, the new formats often provide substantially better sound quality, and it would feel like a tremendous imposition to prevent us from doing this with the CDs for which we paid, cumulatively, tens of thousands of dollars or more. But think of that figure. That's tens of thousands of dollars per person of files in a different physical format, to which the copyright holders technically have the rights under the law, that we will never buy from them. That's a huge cumulative market to lose under the heading of "fair use." Fair use is more often exemplified by something like a reviewer quoting a few sentences from a book or showing a few frames from a video game. These uses don't provide substantially the entire game or book to the point where readers feel they already have it, so why buy it?

A court may or may not feel the "time shifting" decision re VCRs is applicable. After all, we can already play our CDs almost any time and place we want. It's just that we've found a different, substantially more convenient and often better sounding way to do that.

Regarding the industry's decision not to sue, that may have much more to do with the overwhelming expense and negative publicity suing millions of CD purchasers would bring, than it does with any feeling about whether they would ultimately prevail on legal grounds.

So I'm sorry, Kimo, this is truly my answer: I just don't know.

Jud · February 13, 2012

If anyone has any questions about mortgage-backed securities or collateralized debt obligations, I'd be happy to entertain those.

I'm very curious whether a layperson, or lawyer whose expertise lay elsewhere, ever felt perfectly qualified to argue with you about some legal aspect of these instruments or the liabilities of those who sold or traded them?

Jud · February 13, 2012

I do appreciate the free legal advice.

Sorry, my friend, I just need to make very clear that I was not providing legal advice here, free or otherwise, just offering opinions.

Kimo · February 13, 2012

I appreciate you taking the time to craft a thoughtful, as well as thought provoking response.

Paul R · February 13, 2012

I appreciate you sharing your private and unofficial opinion that is in no way binding in any legal, ethical, or moral sense or intention, without reservation, and without any establishment of any attorney-client relationship or the attendant responsibilities and duties thereof.

The lawyer who offers gratuitous advice is in a position analogous to a physician who witnesses a traffic accident. The law does not impose a duty on physicians to treat a victim of the accident.

Close enough? Still appreciate reading your non-official and personal opinion.

Did I come anywhere near close to correcting the utterly unthinking and unintentional blunder?

-Paul

Akapod · February 13, 2012

I think Jud was just being careful. Generally speaking, people who use a lawyer's advice can sue them for malpractice. So we tend to be very sensitive about whether we're providing advice or opinions (and we like qualifiers like "generally). Were you to ask me about MBS and CDOs, you'd get straight opinion from me -- which probably overlaps with advice I would give a client.

I started thinking about how piracy is addressed by Apple. Apple is in a weird spot because more pirated material is played on Apple devices than any others, but Apple also has a substantial library of software which it would like to protect -- it OSs, iLife, iWork and the professional apps (Logic Pro, Final Cut Pro, Aperture).

It looks to me that the App Store is a bit of both a carrot and a stick approach. When I purchase an application from the App Store, it notes the purchase and lets me download the same program to my other registered devices. Gone are the days of wondering whether loading up application on both my desktop and lap was illegal -- I think it was, but some companies (including Apple) decided it wasn't a problem so long as both computers weren't using the program at the same time.

Presumably, it's possible to copy the application and give it a friend/the internet, but I don't know. I would further guess that you could get the application to work, but that the App Store wouldn't let you update it. Which means that if used the program a bunch, I'd probably want to go ahead and purchase it, just to get the rid of the bugs. Also, purchasing a legitimate copy would entitle me to discounts on upgrades.

But the biggest reason I don't know whether you can copy an application is that I've never had the opportunity to try. Apple has priced its software at very, very aggressive prices. Lion, the OS, sells for $30. At Amazon, Microsoft Windows 7 starts at around $90 and goes up to $160. Pages, Apple's word processing program, goes for $20, and Word sells for $115 and up. Logic Pro is $200, and Pro Tools is $600.

At these prices, it's just not worth the effort to bootleg. And I suspect that Apple is doing OK with this pricing because more people are buying legitimate copies, and fewer people are pirating.

Could Apple, and the record companies, do something similar for music? What if ... albums were cut from $10 to $7, and true redbook copies were available for $10 instead?

(Some brief price-checking showed that CDs at Amazon and albums at the iTunes Store go for the same price. And for the sake of comparison, Louis C.K.'s video is available for $5, half of what his albums are going for on iTunes.)

Further, what if 24/96 were available for $13, with (paid) upgrades available from AAC to redbook to hi-res?

I think the only breakthrough in piracy we've seen has been the iTunes program. It's been the first idea to monetize pirated music -- for $25 a year, you can pretty much unlimited access to up to 25,000 of your songs, regardless of how you got them.

In an earlier comment, I said that that the genie of pirating (perhaps the most mixed metaphor ever) is out of the bottle, and is not going back in. Nothing will erase all those unauthorized copies of music sitting in people's hard drives. But I would think that pirating and its effects can be reduced.

Make it more convenient to download legally than to torrent. Reduce the economic incentive to pirate by making legal copies cheaper. And get creative about new revenue streams. iTunes Match provides one, and I think there would be a sizable crowd that would want to upgrade to redbook (and a smaller crowd that would want hi-res).

I think there also might be revenue streams beyond hi-res. After we all "upgraded" our vinyl to CDs (and paid full price for the privilege), we've seen a march of remasters, remasters with alternate takes, remixes, 5.1 mixes and the like. I would think each of these could be an additional revenue revenue stream, where I could upgrade my current copy to a premium version.

I have no idea whether this work, but I'd love to see discussion of piracy (on the consumer level) shift from enforcement (which just makes the RIAA and record companies look bad) to something that actually makes the artists some money.

Paul R · February 13, 2012

[Ah Hah! The opportunity to use a straight line I have wanted to use for so long...]

That's cool - some of my best friends are lawyers.

Actually, I got it, and I am usually careful not to put people on the spot, even unintentionally. It was meant to be a bit of a humorous apology, which it seems I flubbed. Aw well...

In any case, if you eliminate the small part of the "pirate" population who would steal just because they like to steal (i.e. the natural born thiefs... ) then I am not really convinced there is a serious piracy problem.

In fact, I think you are spot on with your ideas. The artificial dumbing down of the music quality should be addressed as right now we are expected to spend high dollars for inferior product. There was some justification in 2005, but not in 2012.

-Paul

Jud · February 14, 2012

It was meant to be a bit of a humorous apology, which it seems I flubbed.

You did nothing that required an apology. I haven't been back on the thread purely due to time considerations, not due to any offense taken.

Pace.

Mark Powell · February 14, 2012

of dollars (worth) that we will never buy from them. But we already have bought it, as CDs. And that's 44.1, as is the rip. We would no more buy it again as a download from them (at 44.1) than we would go and buy the CD again.

How can the record industry, or 'fair use' have a problem with that? No matter how many of us do it. We pay, we use, we don't give away or sell.

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

Recommended Posts

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Link to comment

Create an account or sign in to comment

Create an account

Sign in