Why the heck is it...

[Paul R]

Hi Teresa.

 

Let's talk about the quote from "Stealing is illegal," and then go on to talk about the moral aspect of things.

 

The quote represents the legal position the recording industry takes most of the time. In other words, it is a statement of what the recording industry would like the law to be - again, most of the time (more on that in a minute). The position taken in "Stealing is illegal" is the law in some other countries (many of the nations in the European Union, for instance). However, it is not settled law in the US - in fact, no court has ever specifically issued a ruling taking this position regarding US copyright law. And as I said in a prior note, many US legal commentators are of the opinion that the legality of selling a CD has nothing whatsoever to do with whether you keep a digital copy.

 

Above I mentioned the recording industry takes this position "most of the time." In other words, they are not consistent. In what many people consider the most significant recent court ruling in this area of the law, the recording industry won a case where the court accepted its position that the initial copying of digital content by a consumer who has purchased it is unauthorized and illegal. This was the ReDigi case, where a company set up a business allowing one consumer to sell a digital file to another consumer, and installed software on the seller's computer (with the seller's consent) to confirm that the seller's own copy of the digital file was deleted. So ReDigi made this as much as possible like selling a physical CD, which is legal - after the sale, you no longer had a copy yourself. Notice this would also be right in line with the industry's position in "Stealing is illegal."

 

If ReDigi's business practice was right in line with the recording industry's public position as expressed in "Stealing is illegal," why did they sue ReDigi? Of course it was because they felt this would cut into their own market for sales of downloads. That is the central motivation behind both the position taken in "Stealing is illegal," and the contrary position the industry took in Redigi - the economic interests of the recording companies. The industry felt that telling people they had to get rid of their digital rips when selling their CDs (even though no court had upheld this position) would seem somewhat fair and would be enough of a discouragement to protect the music companies' economic interests. As soon as there was a business model like ReDigi's which the industry felt threatened its economic interests even while complying with the industry's public position, the industry abandoned that position and sued.

 

With regard to the moral aspect: that of course is your own personal business. Just be aware that advertising works (that's why they do it ). In material like "Stealing is illegal," the industry not only states authoritatively what is not the law but only its own preferred legal position (most but not all of the time, as we have seen). It also portrays any more consumer-favorable position as immoral - "stealing." This serves exactly the same purpose as its statements about the law: it discourages people from the conduct (selling used CDs) that the industry sees as contrary to its economic interests. Selling one's used CDs has always been perfectly legal, and the recording industry has never liked this. So when the industry saw the possibility that this (in their economic view) undesirable practice could be encouraged if consumers were allowed to rip the content and sell the physical CDs, they rushed to advertise the position that such conduct would be illegal and immoral (and I'm sure they would have tried "fattening" too, if anyone would have believed it).

 

Well, the advertising has worked, hasn't it? Keeping a copy of the rip and selling the CD has become one of those things "everyone knows" is illegal and has become equated with stealing, though no court has ever said so. But when the industry has had a choice of whether to affirm this "moral" position or protect their economic interests by suing, they immediately chose the latter. That should give you a hint about how sincerely held their moral position is. And if they don't believe it - why should you?

 

Of course there *is* a moral dimension to this. Artists deserve to be paid, at least in my view. So I feel we should act accordingly. But I also feel there is a distinction between conduct that deprives artists of significant markets and royalties they would otherwise have had, and the recording industry's desire to wring every last pfennig from the content it hopes to keep control of for eternity.

 

So well put! And so chock full of information (not legal advice!) that I didn't really know before either. I am no longer "pretty sure" of much of anything in this area, save that the recording industry will pursue every last cent they can pursue.

[jabbr]

Of course there *is* a moral dimension to this. Artists deserve to be paid, at least in my view. So I feel we should act accordingly. But I also feel there is a distinction between conduct that deprives artists of significant markets and royalties they would otherwise have had, and the recording industry's desire to wring every last pfennig from the content it hopes to keep control of for eternity.

 

+1 Artists can be supported by attending concerts!

 

In a counterintuitive way, efforts to circumvent encryption/DRM, can actually be better for physical media sales, as I wouldn't bother purchasing an SACD, and would be tempted to "acquire" the digital media otherwise. I've been spending quite a few $$ with Analogue Productions which does some terrific remasterings for SACD, as well as high-res download sites (bluecoastmusic.com etc.). I also enthusiastically support musicians through attending live concerts.

 

Preserving choice is important to me and the RIAAs behavior makes me choose to give as little business to the so-called "majors" as I can.

[bkinbk]

Not sure if this is exactly what Paul was meaning ... but I find it incredibly hard to FIND new music. Its not that there isn't new music out there I would want to listen to but finding it isn't easy.

 

I still find a lot of new things going to B&M stores (primarily Rough Trade) but also reading things like the "Album of the Evening" thread here and similar threads on other forums as well as reviews in paper/magazines.

 

Radio 6 Music and various other shows on TV and radio help too!

 

Of course there is also both "new" music and "new to me" music.

 

I'm sure I still miss a lot though.

 

Try All Songs Considered on NPR

 

http://www.npr.org/sections/allsongs/

 

Or

 

https://itunes.apple.com/us/podcast/all-songs-considered/id79687345?mt=2

 

Their website/podcast/show and Tiny Music Desk is a great way to discover new artists.

[Jud]

Try All Songs Considered on NPR

 

All Songs Considered : NPR

 

Or

 

https://itunes.apple.com/us/podcast/all-songs-considered/id79687345?mt=2

 

Their website/podcast/show and Tiny Music Desk is a great way to discover new artists.

 

All Songs Considered, Tiny Desk Concerts, pre-release new albums in their entirety from many genres, full live shows from various venues, informative articles and more are available through the NPR website, and also, more conveniently, through the NPR Music iPhone (and Android?) app. Very much recommended. I don't know what the geographic limitations on access to content are, if any.

 

Edit: Lucinda Williams' latest in its entirety is up on their pre-release page, "First Listen:" http://www.npr.org/series/98679384/first-listen

[Jud]

One of my favorite artists:

 

Bombino Announces New Album Azel Produced by Dirty Projectors' Dave Longstreth | News | Pitchfork

 

A song from the new one:

 

Songs We Love: Bombino, 'Akhar Zaman (This Moment)' : NPR

 

And another from the most recent album, Nomad (the album version is rocking and electronically amplified - this is acoustic):

 

[Jud]

+1 Artists can be supported by attending concerts!

 

 

I saw Ryan Bingham in Philly this past Sunday night. He is in Washington DC tonight, NYC tomorrow, and Brooklyn Friday. He'll be in Nashville in March, Oz and NZ in April. *Do not* miss him if he comes around your area.

 

[video=youtube;cw-jHgMgEtQ]

 

Edit: OK, a little overkill but I just had to post this one too:

 

[Sal1950]

Of course there *is* a moral dimension to this. Artists deserve to be paid, at least in my view. So I feel we should act accordingly. But I also feel there is a distinction between conduct that deprives artists of significant markets and royalties they would otherwise have had, and the recording industry's desire to wring every last pfennig from the content it hopes to keep control of for eternity.

 

Thanks Jud for your attempted enlightenment of what is a very murky legal and moral area. Sounds like the labels and artists real position blows with the wind in what ever direction will put the $ in their pockets on that particular day.

My personal feeling is that when a CD is sold new the artists get their share, which in many cases is not so "just or moral" by the labels. They been screwing the artists forever in this area.

Also the artists get paid again every time a song is played on the radio or streamed over the net, though there are huge arguments that they don't get a fair share here either.

If the artist has contracts with the labels they got paid then before the product was ever created. Plus my favs nail me with huge concert ticket prices when I go to see them live, mainly to listen to them once again perform music I probably first paid for in 1971.

 

I worked full time on the job since I was 15 till I retired at 62. I spent all those years working, learning, going to extended education classes, all to become a highly trained professional in my field. In all those years I got paid at the end of the week for repairing your car or motorcycle, ONCE, not over and over. I now live on SSI and a very modest income from money saved over all those years. I have no moral angst over what I do with the CDs I bought and paid for, there mine and I'll do with them as I please. Don't ask my to cry over not sending more money to the multi billionaire artists cause I have those CDs ripped to my HD, I already paid for that recording. They don't need, deserve, nor will they get, any more from me IMHO

[jabbr]

I worked full time on the job since I was 15 till I retired at 62. I spent all those years working, learning, going to extended education classes, all to become a highly trained professional in my field. In all those years I got paid at the end of the week for repairing your car or motorcycle, ONCE, not over and over. I now live on SSI and a very modest income from money saved over all those years. I have no moral angst over what I do with the CDs I bought and paid for, there mine and I'll do with them as I please. Don't ask my to cry over not sending more money to the multi billionaire artists cause I have those CDs ripped to my HD, I already paid for that recording. They don't need, deserve, nor will they get, any more from me IMHO

 

I appreciate your sentiment. Fact is that the vast majority of musicians live week to week on gigs and similarly work very hard. Many start with lessons when they are in grade school and practice hours a day for decades. You don't need to pay $$$ for tickets to [insert megastar], rather seek out the numerous small concerts of whatever type of music you like, and realize that these small concerts are going on all over the world and all from hardworking people themselves trying to eke out a living.

[jhwalker]

I appreciate your sentiment. Fact is that the vast majority of musicians live week to week on gigs and similarly work very hard. Many start with lessons when they are in grade school and practice hours a day for decades. You don't need to pay $$$ for tickets to [insert megastar], rather seek out the numerous small concerts of whatever type of music you like, and realize that these small concerts are going on all over the world and all from hardworking people themselves trying to eke out a living.

 

OT: Thank you for spelling "eke" correctly

[Snowmonkey]

eek! A pedant!

[tranz]

Soundcloud can also be a site to find new music.

 

And

 

http://weekendprog.blogspot.fr/2015/12/ten-amazing-prog-rock-albums-you-may.html?m=1

[Allan F]

Don't ask my to cry over not sending more money to the multi billionaire artists cause I have those CDs ripped to my HD, I already paid for that recording. They don't need, deserve, nor will they get, any more from me IMHO

 

Of course, you are right! The music world is just overrun with multi billionaire recording artists who don't deserve to earn a penny more.

[tranz]

[ATTACH=CONFIG]23996[/ATTACH]

 

Of course, you are right! The music world is just overrun with multi billionaire recording artists who don't deserve to earn a penny more.

 

Yup. Moreover, we do not want variety in music, nor do we want to incentivize cultivating any more talent along the way. What we need is for those artists to use their talent flipping burgers instead!

[Teresa]

...In all those years I got paid at the end of the week for repairing your car or motorcycle, ONCE, not over and over.

 

Bad analogy, you are repairing something, such as taking a skipping, scratched CD to dealer that repairs discs, they also get paid once for the repair. When the car or motorcycle is resold, the seller doesn't have the right to drive that car or motorcycle, that passes to the new buyer.

 

However, royalties are paid only once on a CD or other physical disc when it was sold new. When it is resold used, the right to play the music on the CD passes from the original purchaser to the new purchaser. The only reason to sale or give away a physical disc is because you don't like the music on it and retained no copies for yourself!

 

I have no moral angst over what I do with the CDs I bought and paid for, there mine and I'll do with them as I please. Don't ask my to cry over not sending more money to the multi billionaire artists cause I have those CDs ripped to my HD, I already paid for that recording. They don't need, deserve, nor will they get, any more from me IMHO

 

You lost the right to play the music on the CDs when you sold the CDs, because that right passes on to the new owner of the disc.

 

Besides, many artists barely scratch out a living, only a very few are super rich. Before the internet and other theft, recordings artists toured to support their new album and most of their money was made from album sales.

 

Now, artists have to tour all the time or give up music as music sales now only account for 6% of their income because of theft from people illegally downloading their music for free and people copying their CDs and recording them to analog formats or to their computers hard-drive and then reselling or giving away their CDs. This is one reason concert tickets have increased so much and why artists have to sell merchandise such as tee-shirts etc.

 

Now if you lend that book to a friend and he reads it and gains it's knowledge, or you teach someone the skills you learned, will you collect a royalty and pass it on the author?.

 

Another bad analogy, lending a book is no different from lending a CD. You can lend friends your CDs to listen to. If the friend likes the CD and purchases a copy for themselves then the royalty gets paid to the artists and recording companies. However, if that friend makes a copy of your CD and continues to play it after returning the CD to you, that IMHO is outright theft and morally wrong.

 

When used book or CD stores sell a item, are they paying royalty fees to anyone?

 

No royalty is paid on used items. The royalty is paid only on the original new copy of the CD or book and that is why when one sells a CD or book they cannot retain a copy for themselves.

[Teresa]

Hi Jud,

 

The problem I see with the ReDigi download reselling case is while ReDigi, with the software that they require on the seller's computer, confirms they deleted their copy from the computer they sold it on. It cannot confirm that it is also deleted from the other digital devices the seller has, such as back-up drives, other computers in the home, portable devices, etc. Thus, there is no way to confirm the seller didn't retain copies of the download they sold, and other than iTunes downloads a way to confirm they purchased it legally. So, that doesn't counter their position that the right to play the said music passes from the seller to the buyer.

[Paul R]

I appreciate your sentiment. Fact is that the vast majority of musicians live week to week on gigs and similarly work very hard. Many start with lessons when they are in grade school and practice hours a day for decades. You don't need to pay $$$ for tickets to [insert megastar], rather seek out the numerous small concerts of whatever type of music you like, and realize that these small concerts are going on all over the world and all from hardworking people themselves trying to eke out a living.

 

One thing, is that there are also a lot of wannabe musicians out there that are - well - really not all that good. Lots of the small concerts are great. Even more of them are somewhat difficult to endure.

 

One has to seek out and find the folks worth listening to and supporting, and that may well be a limited subset of the musician population. That is, finding the really good musicians is not any easier than finding new music in other venues. Or finding really talented people in other fields.

 

On a case by case business, it may be better to spend the money for a ticket on a six pack (or a bottle of nice wine, coffee, or whatever your pleasure dictates) and a new CD.

 

It's not PC, but a significant percentage of those musicians out there scrabbling gig to gig really are really into the lifestyle for something other than the music they can create. I would not say the "vast majority of musicians", but like I said, that isn't PC and this is area dependent of course. I am not denigrating anyone, but there isn't anything magic about calling oneself a musician that makes one worth supporting. Same with programmers, engineers, teachers, etc.

 

Also, musicians rarely shine by themselves, though you do run across them. Jim Croche, Tracy Chapman, even The Rotagilla Band. (One of my favorites foremost 40 years...) More often however, they require managers and lots of support people to really make a living. That means they have to make a *lot* of money to pay for *those* people. Even true with symphonies.

[realhifi]

Guess I'd better get rid of those mix tapes we made in the seventies seeing as I don't even know where the albums from friends, my collection, etc even are anymore. Probably quite a few may have made it down to the local college station way back when.

[Jabs1542]

Guess I'd better get rid of those mix tapes we made in the seventies seeing as I don't even know where the albums from friends, my collection, etc even are anymore. Probably quite a few may have made it down to the local college station way back when.

 

You mean the ones you recorded off the radio? Oops, I guess that's another can of worms

[Jud]

Hi Jud,

 

The problem I see with the ReDigi download reselling case is while ReDigi, with the software that they require on the seller's computer, confirms they deleted their copy from the computer they sold it on. It cannot confirm that it is also deleted from the other digital devices the seller has, such as back-up drives, other computers in the home, portable devices, etc. Thus, there is no way to confirm the seller didn't retain copies of the download they sold, and other than iTunes downloads a way to confirm they purchased it legally. So, that doesn't counter their position that the right to play the said music passes from the seller to the buyer.

 

Hi Teresa,

 

Because of the legal posture of the case when it was decided, the court never reached factual matters such as to what extent ReDigi could ensure removal of the sold file from the seller's control.

 

What the case turned on was not any question of fact, but the court's agreement with the industry's legal position that a consumer making a copy of digital content they had purchased violated the music company's copyright. Because technically a computer must make a copy of a file whenever it is transferring that file, it didn't matter whether the seller deleted his file; just the act of sending the file to the buyer meant the seller's computer was making a copy, and the court agreed with the music company that making such a copy was legally unauthorized.

 

So as I've explained previously, the industry in ReDigi took a position contrary to the one it has tried to take publicly (and has tried to convince people is the law, though that is anything but settled), that it's keeping a copy for yourself that is the violation. Just making a copy is a violation, according to the result of the ReDigi case.

 

Technically this makes no sense at all, since just playing a file from a computer, iDevice, etc., involves a copy of the file contents being moved into RAM and then a DAC - after all, the original file isn't gone after you've played it, right? And of course the same is true when you spin a disc. So apparently any time you listen to digital music you've paid for, according to the ReDigi case, you're violating the music company's copyright. In fact this implicates a lot more than just listening to music, which is why many large digital content companies such as Google tried to submit "friend of the court" legal briefs, but the ReDigi court did not accept them.

 

Edit: One other point I wanted to make is that in these cases, the industry is pushing to have the law involving digital content look a lot different than copyright law involving other merchandise, and the courts are listening (unfortunately, in my view). If you decided to sell a necklace to a friend, don't you think it would be an absurd idea if the jewelry designer had a legal right to check whether you had "truly" sold it, or whether you borrowed it back, say for formal occasions? Do you feel it would be immoral, something akin to stealing, if you did borrow it back? Yet this is the sort of thing the music industry contends should be relevant in the realm of digital content.

[esimms86]

Does the US Court have consistent rulings re: purchase, use and resale of video content? Also, strictly speaking, is it proven to be legal(i.e., not just assumed legal) to keep a video recording on your purchased or rented DVR(or has there just never been a test case to actually reach that conclusion)? Also, what are the rules on the audio content of a video product? Is it legal to rip the audio for the buyer's personal use? Does it matter whether or not the audio content is also available as a standalone CD or audio download(I expect it does)? If I, say, save the audio content from an Austin City Limits episode and the artist subsequently releases the audio as a standalone CD then where do I stand(and where did I stand before that CD was released)?

[bluesman]

No royalty is paid on used items. The royalty is paid only on the original new copy of the CD or book and that is why when one sells a CD or book they cannot retain a copy for themselves.

That's called the "first sale doctrine", and it's the reason you can legally resell your CDs. From the DOJ website:

 

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, display 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.

 

But there's so much more to this that it's impossible to figure out what most of it means (at least until a court rules that it means X or Y or Z). The copyright laws seem to prohibit some lending as well. After the above, the code goes on to say that:

 

nless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.

 

Jud, can you shed any light on the meaning of and intent behind the qualifier "for the purposes of direct or indirect commercial advantage"? I can understand that you're not allowed to destroy your competitors' works in order to gain a market advantage - but where does "lending" fit in and might any of this apply to us?

 

David

[Sal1950]

Hey Jud,

Quit giving out free legal advice, make em pay by the line for your intellectual property.

And for each time you have to repeat yourself too.

[Jud]

Hi folks. Indeed, I'm not giving out legal advice here, free or any other kind. For that you need to hire a lawyer, and I've already got a job. My prior comments were for two purposes:

 

- To impress on everyone that legal situations are very much individual and determined by specific facts, so general discussions of a legal topic area (especially from laypeople, but from me as well) are of little to no use in determining your own particular course of conduct.

 

- To point out the fact that the music industry is anything but impartial when it comes to discussions of the copyright laws, so one ought to maintain due skepticism about their pronouncements regarding what is legal or moral(!).

 

That I think having been done, I'd love to see the thread get back to the subject of discovering new music, which as you might imagine is a heck of a lot more fun for me than legal discussions.

[crenca]

Hi folks. Indeed, I'm not giving out legal advice here, free or any other kind. For that you need to hire a lawyer, and I've already got a job. My prior comments were for two purposes:

 

- To impress on everyone that legal situations are very much individual and determined by specific facts, so general discussions of a legal topic area (especially from laypeople, but from me as well) are of little to no use in determining your own particular course of conduct.

 

- To point out the fact that the music industry is anything but impartial when it comes to discussions of the copyright laws, so one ought to maintain due skepticism about their pronouncements regarding what is legal or moral(!).

 

That I think having been done, I'd love to see the thread get back to the subject of discovering new music, which as you might imagine is a heck of a lot more fun for me than legal discussions.

 

No worries here as to an appropriate amount of skepticism towards "the music industry" when it comes to there advice as to what is legal and moral!

 

Just want to throw in this issue (copyright law vis-a-vis digital/software) is also rearing it's head in the auto world where manufactures want to limit what end users and their mechanics can do with "their" (copyrighted) property. As most know, a modern vehicle is as much computer as anything else, which means software and copyrights:

 

Carmakers Want To Use Copyright Law To Make Working On Your Car Illegal

 

I actually look to the auto world or some other market to resolve this, as the $money$ in it is much much greater and thus the pressure for courts/congress will be enough to clarify and put a stop to these ridiculous interpretations. When the general public figures out that they don't own anything anymore because digital/software is everywhere, I am optimistic a reform of copyright will occur.

[rn701]

Very little of what you discuss above is legally clear cut.

 

For example: Fair use status even of private copying has not been clearly established in the US. The legal test for fair use involves balancing at least four factors specific to the particular facts of each case. Under these factors, many legal commentators say the question of fair use is entirely separate from whether you sell or keep the CD from which the file was ripped. So the question would be whether the rip itself was fair use, not what you did with the original CD.

 

I'll leave it there, since this is an audio rather than a legal forum and I think more would get very tiresome. Suffice it to say that as a layperson you don't know what you don't know, and one of those things is that your question is anything but "straightforward."

 

Very much of what I discuss is legally clear cut.

 

At any rate, I might not know what I don't know, but I do know what I do know.

 

And one thing I do know is that my lawyers aren't smug, self important jerks. And they don't bob and weave and confuse and obfuscate to run up billable hours.