Replies

KevinB wrote:
My problem is not with people like you, but with people who get on their soap boxes and claim they have a legal or moral right to download music for free.

Could someone please explain the difference between the following actions:

1. I connect a videotape recorder to my television and record a movie for later viewing. I view the tape at my own convenience and keep it. Is this illegal? If so, why?

2. I connect a cassette recorder to my receiver and record an FM radio broadcast. I keep the tape and play it when I wish. Is this illegal? If so, why?

3. I connect a minidisc recorder to my computer, and record a streaming Internet radio broadcast to MD. I play the MD at my convenience. Is this illegal? If so, why?

3. I borrow a CD from the local public library and play it 10 times on my portable CD player. Is this illegal? If so, why?

4. I borrow the same CD from the local public library and record it onto cassette tape. I return the CD to the library, and play the cassette tape 3 times. Is this illegal? If so, why?

5. I borrow the same CD in 3 and 4 above, and this time I play it 10 times on my computer's CD drive. Is this illegal? If so, why?

6. I borrow the same CD as in 3, 4, and 5 above, and this time make a copy of it in mp3 format. I return the CD and listen to the mp3 files 3 times. Is this illegal? If so, why?

7. I download files (selections from the same CD title that is available at my public library in 3, 4, 5 and 6 above) from "alt.binaries.sounds.mp3.bluegrass". I then copy them to cassette tape. Is this illegal? Why?

8. I download files (selections from the same CD title that is available at my public library in 3, 4, 5, 6 and 7 above) from "alt.binaries.sounds.mp3.bluegrass". I then copy them to minidisc. Is this illegal? Why?

I realize there are subtle differences in the above examples. When one records from "broadcast" (television, FM radio, streaming audio), I am assuming that the "broadcaster" is paying some kind of compensation to the owner of the copyrighted material. I'm also aware of significant court cases from years past that give "end recorders" the right to "fair use" of the material (presuming that they record only for personal use and do not distribute or sell the material for profit).

But where does "fair use" apply to the case of borrowing a CD from the public library and then recording it as you listen to it? Certainly, it is legal to borrow the CD and listen to it. But where is the "fine line" drawn between listening (and recording) the same track from the radio, or from the [legally obtained] source from the public library? You still have a copy of material you did not "pay for".

In most cases, libraries do not buy the CD's that they have available for borrowing/listening - these are "donated" to them, placed into the library's collection, often "for free" (that is, the donator received no compensation for the gift, not even a tax deduction). Let's take this a little further:

Have not the audio NEWSGROUPS become the equivalent of "libraries" of a sort, repositories of "donated" music? Those who post to the audio newsgroups receive no compensation, can take no tax deduction for the material they are "donating". Once placed into the newsgroups, the material can be "checked out" (i.e., downloaded) by "vistors" to that newsgroup. A "cyber-library", if you wish.

I'm thinking that - in time - the concept of "fair use" will have to be expanded, or redefined. If it is "fair use" to record video source information from a broadcast source to video tape, how can it _not_ be fair use to record the same broadcast directly to digital/video hard disk?

If it is "fair use" to record audio source information from FM radio to cassette tape, how can it _not_ be fair use to record the same audio information from a streaming webcast directly to audio/hard disk?

Ultimately the question of "fair use" may transmogrify into something called "compensated use". That is, "fair use" will remain "fair" so long as the end user is not deriving income from the "usage".

Cheers!
- John

In most cases, libraries do not buy the CD's that they have available for borrowing/listening - these are "donated" to them, placed into the library's collection, often "for free" (that is, the donator received no compensation for the gift, not even a tax deduction).

But the donor bought the recording, and presumably not on the black market.

One concept which has generally been applied to copyright practice, even if not copyright law, is that a purchased instance of a copyrighted work provides the purchaser with a transferable right to use one instance of that work at a time. This is often extended to include the case of one person using multiple instances at a time (not applicable to music, but very much applicable to many types of application software).

If you take the CD from the library and transfer some music onto your iPod, then as long as you still have the CD, only one instance of the music thereon (the one on your iPod) will be in use. When you return the CD to the library, however, you are thus allowing someone else to use it. As such, you have no continued right to use it yourself unless you can somehow ensure that nobody else is using it at the time; since you generally cannot be sure of that, you cannot use the music unless or until you check it out again.

It's too bad that there hasn't been any legislative effort to encode the 'instance use' principle into formal statute; I think it would make many things much clearer.

Of course, given that the RIAA wants people to buy separate copies of music for every differnet music-listening medium (if not every player), they'd want nothing to do with such a change.

What all of the examples have in common is you're downloading and recording the stuff for your own private personal pleasure. You're not trying to make a profit off it by selling it without the copyright holder's permission. RIAA needs to understand that people who download and burn songs to their CDs don't do so with the intent of selling it or any way profiting from it illegally. People feel if they resort to Kazaa, Morpheus or WinMX to burn to their own CD they aren't infringing upon any one's rights. RIAA would be better off figuring out to turn this to its advantage than attempting to sue 40 million customers into foregoing file swapping online.