- February 20, 2007 @ 5:30pmkiki says:it it legal or allowable for me to burn songs from a cd i check out from the library onto my ipod for personal use, or is that breaking copyright laws?
Also, does anyone know where i could look to determine for sure what the legal policy is on burning songs from a friend's cd for personal use?
- February 21, 2007 @ 7:55amwilliamsonl says:No, it is not legal to burn and retain a copy of a cd you do not own. You can buy a cd and burn a copy to your computer or ipod for your own use, but not for someone else. Same holds true of any borrowed cd, either from a library or a friend.
- February 21, 2007 @ 6:41pmCOvalle says:I have a different interpretation. I think that a cd for a friend, such as a mix cd or mix tape, is a fair use.
- February 24, 2007 @ 6:50pmkiki says:what are you basing the statement that "it is illegal to copy and retain cd's that you do not own" Is there a specific law or library policy stating this??? And what if someone burns you a cd of songs they bought online and gives it to you as a gift? is that legal, and if not, what do you do with the cd?
- February 26, 2007 @ 8:22amwilliamsonl says:When you buy a cd, you are purchasing one copy--same as with a book. You can't copy the book and give it to someone else. The library bought a cd and is entitled to that one copy. You can't copy an entire book you check out of the library. When someone downloads music for a fee, they agree to certain terms for the download. These may vary from place to place, but I would bet they don't allow you to make copies of the song and pass it out to friends.
If COvalle has time, I would be interested to hear his argument for fair use for a mix tape--I see 3 of the 4 factors being against it, but would like to see an argument for.
- February 26, 2007 @ 9:18amCOvalle says:I have a few reasons for this belief.
First, I'm going to distinguish this action from the above analogy. Copying a CD for a family member or friend is not the same as checking a CD out from a library and copying it. They're two different acts, and that makes a difference.
Actually, there are a lot of acts and copyrights affected here. We have the copying act and the distribution act, and all the copyrights associated with music.
Historically copyright has not restricted personal uses, which I believe this act is. Copyright restricts distribution of copies to the public. Part of this action (giving the copy to a friend or family member) does not meet that criteria. Section 1008 also prohibits lawsuits for noncommercial copies that use an analog or digital copying device (which does not include a computer, by the way). I recall at least one member of Congress expressing skepticism as to the implication that the law they passed would restrict this type of use. I'll see if I can dig that reference up one of these days. Anyway, personal uses haven't been illegal, and fair use is generally an ineffective way of looking at them. Jessica Litman has a really interesting paper on the subject at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926575 called "Lawful Personal Use."
If you're looking a fair use argument, here's a quick one.
1) Purpose - A personal use, for. This is distinct from peer-to-peer music sharing in scale (distribution to the public) and from cases such as Grokster, where the court determined that the uses were commercial.
2) Nature - Against.
3) Amount - Depends, but usually against.
4) Effect on the Market - Kind of a wash. I don't see this having a harmful effect on the market. The mistake in many reports is equating a copy with a lost sale. It's not.
Because it's generally a personal use that doesn't impact the market much, even in aggregate, I think that the use is fair. There's all kinds of room for debate, naturally. ^_^
I do agree that a license for downloaded songs would probably expressly forbid that type of copying.
On another note, the presence of unauthorized copyrighted material does not necessarily imply infringement (when you're talking about "retaining" material). There was some debate about this in an RIAA case last year. I can't find the articles at the moment, but I'll go back and look when I have time. Whenever that may be. :P
- February 28, 2007 @ 6:49amksmith says:I would like to second the recommendation of Jessica Littman's excellent article referred to by COvalle. and also make two quick points (distilled from Littman).
First, personal use is not defined by our copyright act (as it is in several other countries), so its boundaries are not at all clear. The issue of whether copying a CD for a friend is personal use seems especially debately. In RIAA v. Diamond Multimedia, the Ninth Circuit Court of Appeals made it pretty clear that ripping a CD to a portable device was not actionable, but its reasoning for that conclusion is not obvious, and the RIAA has subsequently tried to assert that such copying is allowable only because the content owners impliedly authorize it.
Which brings me to my second point. Some of the copying kiki asks about seems to me (contra the RIAA) to be authorized by section 1008 of the Copyright Act. That, rather than fair use, is where I would begin the analysis of copying for personal use in a portable device. 1008 does not actually mention copying, but it is hard to give it any meaning without some such authorization, and "noncommercial use by a consumer" is language flexible enough, perhaps, to cover even copying to give to a friend.
- March 12, 2007 @ 8:05amRDavis says:Thank you both, Carlos and ksmith, for recommending Jessica Littman's article. I haven't had the chance to read it yet, but will as soon as I have the chance.
I have a follow-up question for either of you, which involves a situation that falls somewhere in between making copies of music for friends and copying music owned by a public library. Some of the music faculty at my institution have expressed frustration at the lack of a suitable audio compilation in the marketplace for the classes they teach. They would assign such a compilation if it existed and require their students to purchase it along with their required textbook(s), but the compilation often just doesn't exist.
We have implemented streaming audio e-reserves, but our University administration falls on the risk-averse part of the fair use spectrum, so they will not allow the library to stream entire copyrighted works. (They view a single track from a CD as in and of itself a complete copyrighted work, so they consider both nature of the work and amount used as counting against us in the fair use analysis.) Consequently, we're only allowed to stream excerpts in our audio e-reserves.
The music faculty believe in many cases that in order to meet their teaching goal they need their students to hear the entire work, however. (And it seems self-evident to me that it should be the instructor making this determination of when an entire track is needed, not administrators or librarians.) So some of the faculty have asked whether they could create appropriate CD compilations and distribute them to their students.
In my opinion, this certainly qualifies as "public" distribution. But I hadn't before considered whether Sec. 1008, which I know very little about, might apply. While the distribution of the recordings might be public, it's also non-commercial if the instructor isn't selling the CDs to the students. Assuming an instructor created such a compilation, copying only from legally purchased copies in his/her personal LP/cassette/CD collection (not including iTunes tracks and similar items possibly subject to license restrictions) do you think Sec. 1008 might somehow apply? I still think our counsel wouldn't sign off on this, but I'm curious about how you'd approach the question. Thanks...
- March 12, 2007 @ 8:33amRDavis says:I forgot to add a related question to my previous post:
Another one of our music faculty members recently learned of Rogue Amoeba's NiceCast software, which allows users to webcast their digital music collection (http://www.rogueamoeba.com/nicecast/). The software manufacturer, as one would expect, places the burden of copyright compliance entirely on the user, referring their customers to Sec. 114 of copyright law.
Sec. 114 is a nightmare to slog through, but it allows statutory licensing for non-interactive, non-subscription public performances of sound recordings given by means of a digital transmission. This instructor at my school was speculating whether he could use NiceCast to webcast a weekly program relevant to his course, which his students could then listen to online. Sec. 114 places numerous requirements on the types of webcasting it provides statutory licensing for, most of which seem to be aimed at making the webcast as simultaneous and unpredictable as a live radio broadcast. For instance, it prohibits the webcaster from publishing in advance the specific titles of the sound recordings to be transmitted.
Anyone out there have any experience with webcasting, Sec. 114, or the NiceCast software, esp. for the kind of educational webcasting proposed by our instructor? (It's painfully obvious to me that our adminstration's prohibition against putting entire tracks in audio e-reserves is leading our faculty to find creative alternatives; clearly, a real educational need isn't being met here. But that's the subject of an entirely different post...)
- March 12, 2007 @ 12:32pmksmith says:In regard to section 1008, its utility is severly limited by its narrow definition of a "digital audio recording device." In RIAA v. Diamond Multimedia, the Ninth Circuit held that personal computers are not digital audio recording devices within the meaning of the statute because they are not designed primarily for making such recordings. The decision stopped the RIAA from preventing the distribution of an early MP3 player, but it had the consequence of moving the devices most often used by consumers when copying digital music -- a pc with cd burner -- outside the scope of 1008.
Reminding myself of this case, by the way, makes me aware that my comment above was probably unhelpful, since ripping a CD to an iPod requires the intervention of a pc and probably moves that activity outside the scope of 1008 as well.
Even though my previous references to it in this forum have not been well-received, I still think the best justification for what your faculty want to do is section 110(2) -- the TEACH Act. By my reading it allows the transmission of complete non-dramatic musical recordings as long as the system is restricted to students registered in the class for which the recordings are used, the students receive a notice of copyright protection when they access the works, and "reasonable technological measures" are taken to prevent saving and downstream distribution of the files. In my opinion, streaming constitutes such a reasonable technological measure. So I would justify audio e-reserves or the use of NiceCast that way, assuming in each case that only students in the class could access the streamed material. Try referring your university counsel's office to 110(2) and to North Carolina State University's excellent website (http://www.lib.ncsu.edu/scc/legislative/teachkit/) parsing the act and explaining its use; they might change their minds.
I know I read through section 114 at some point long ago, but I can not imagine trying to uses its convoluted rules to justify an educational transmission when the (relatively) more succinct and clear TEACH Act is available. Imagine a provision that makes 110(2) look clear!
- March 12, 2007 @ 12:44pmRDavis says:Thanks for the clarification, ksmith. I agree that (hard as it is to believe!) the TEACH Act is a walk in the park compared to Sec. 114. It's also clear to me that TEACH was intended for the kind of transmission that our instructor wants to do, while Sec. 114 is really meant for something else entirely (like radio station webcasts/retransmissions).
However, I still believe that both the language of 110(2) and the legislative history of TEACH make a distinction between non-dramatic musical *works* (not "recordings," as you say, but "works," which is what 110(2) actually says) and sound recordings which may embody performances of such works. The former can be transmitted in their entirety according to TEACH, while the latter fall into the "reasonable and limited portions of any other work" category. But I'm sure we don't want to rehash that conversation!
- March 12, 2007 @ 1:49pmksmith says:Darn, I was hoping I had convinced you that the distinction you are making between works and recordings is a misreading of the statute. "Works" is the copyright act's broadest designation and it clearly incorporates sound recordings -- see the catalog of stuff included in the scope of copyright in section 102, where "works of authorship" includes "sound recordings." So section 110(2) would not use "works" in the way that it does in the phrase "nondramatic literary or musical works" if it was intended to exclude recordings. Congress knew how those words are used in the statute and would/should have been explicit if they wanted to make a distinction that is neither obvious nor made elsewhere in the act.
- March 12, 2007 @ 2:07pmRDavis says:Here we go again...:O
Sec. 102 also delineates sub-categories of the types of "works of authorship" protected by copyright. Included in this list as distinct types of works of authorship are "literary works," "musical works," and "sound recordings."
Sec. 110(2) only sanctions the performance in its entirety of a "nondramatic literary or musical work." It does NOT sanction the performance of a "nondramatic work of authorship," which is how you're reading the statute. It's very specific about the types of works of authorship that may be transmitted in their entirety.
Congress was perfectly explicit in legislating the Register of Copyrights recommendations. Again, her recommendations explicitly stated that sound recordings were one of the other types of works which can only be transmitted in reasonable and limited portions. But I don't think you even have to refer back to the legislative history -- 110(2) is perfectly clear about the TWO types of "works of authorship" that may be transmitted in their entirety--everything else, including sound recordings, by definition are "other works."
- March 12, 2007 @ 5:49pmksmith says:No, I won't continue this argument; we are clearly not getting anywhere. I just hope readers of this forum will examine the statute and make their own decisions.
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