Backups of audio CDs: Legal precedents?

[Joe_Random]

I’m trying to settle a debate with someone concerning the legality of making backups of CDs which you own. I contend that doing so (as long as the copy is for your own, personal use) falls under the “fair use” section of the US code. Specifically Title 17, Chapter 1, Section 107. The person I’m arguing this with claims that since Section 117 doesn’t mention making personal backups, that doing so isn’t fair use.

So my question is this: Have there been any legal precedents upholding the notion that making backups of CDs (or phonorecords in general) should be classified as fair use?

[Joe_Random]

And of course, “Section 117” should read “Section 107”. :smack:

[Horseflesh]

If your friend is looking for a hard and fast answer about “fair use” in making personal backups of audio CDs, there isn’t one. To quote these notes on the same web site:

 General Intention Behind the Provision. The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, **the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute.** The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

Bolding mine.

It really depends on why you’re making the backup and what you plan to do with it. It’s up to a judge to apply the four criteria in your link (most likely numbers 1 and 4 in the case of personal backups) to determine if it falls under fair use.

However…

If you happen to be a library, section 108 states that you can make one copy for archival purposes, or three copies under subsection (c):

The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if —

(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and

(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

[Horseflesh]

Oh, and here’s your legal precedent: RIAA v. Diamond Multimedia about the legality of their Rio player as determined by the U.S. 9th Circuit Court of Appeals in 1999.

[Ms2001]

The Audio Home Recording Act section 1008 says you can’t be prosecuted for using an approved digital device and media (e.g. stereo component CD burner with “music CD-R”) to make copies of copyrighted works.

[Joe_Random]

Thanks for that cite. That really helped my case. Although wading through the US copyright code is a royal pain. Makes me really gald I’m not a lawyer.

[Joe_Random]

And of course, someone else comes in with a cite right after I post. So thank you to both Horseflesh and Mr2001. Being able to point to the right part of the US code is really helpful.