I understand it is allowed to make copies of ones own music, e.g. I have just transferred all my LPs to CDs and make copies of my CDs. But can I now sell the originals? It would seem to defeat the point of the law if could just buy a CD. copy it and sell the original on Ebay for a small loss.
It is legal at the current time so far as I understand it.
Further, in Japan, the standard practice is for video rental places to also rent CDs, thus the populace mostly rents the CD, makes a copy, and returns it. This was pioneered for the MiniDisc player, and presumably will be the way that the US will go. Either that or current day CDs will have anti-copy protection added at some time.
I know it’s a wide-spread practice, but is it actually legal?
IANAL, but it is my understanding that you are allowed to make backup copies for your own use. You can’t let anyone else play your backup copies and if you sell or get rid of the original then you can’t legally use your backup copies any more either.
The RIAA however is arguing that backup copies do not constitue fair use and therefore shouldn’t be allowed. This would mean that copying your own music (per the OP) would also be illegal.
I’ll leave it to the lawyers to sort this one out.
IANAL, but I don’t think you can legally retain a copy
My reasoning is: when you buy a CD or other recorded work, you’re actually buying the medium and a license to use the recorded contents; ‘fair use’ means you can back up the contents of the medium to another medium, and play it from that medium, under your own license.
When you sell the original CD, you’re releasing the license to the buyer; you can no longer legally use the recorded contents.
tx - I think you are right that I shouldnt keep the copies legally thinking about it.
No, it is not legal.
You have no right to make copies unless the copyright holder expressly grants you permission to do so. Not even for “backup” (this misconception comes from software, where you are specifically given the permission to copy the software onto your hard drive. But if you could copy it without permission, then there’d be no need to grant it to you).
If anyone cares to argue this point, they must quote the actual section of the copyright law (http://www.copyright.gov/title17/) to back up their claim. I have made this stipulation many times online, and no one has yet been able to do it.
Nothing in a CD license gives you the legal right to copy it to your hard drive. People do it, and it’s not strongly enforced, but it is not legal.
Legal downloads are different; you usually are granted the right to burn it to a CD (usually more than one) for personal use.
Addendum: Selling the original is legal, BTW; copying it to the hard drive is where the violation occurs.
In the other threads on this very topic the consensus was that you legally own the backup if you own the original, not if you sell it.
How is a person expected to place the music on their MP3 player if they can’t get the CD content to the hard drive first?
17 USC § 107.
Happy to help.
So, copying it to my hard drive to then trasport to the MP3 player is not an act of commercial gain on my part, correct?, and should be legal?
No. Fair use is not applicable in this case.
First, making your own copies for yourself is not “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
Second, clause 3 says you need to look at the amount copied. When you are copying entire albums or even entire songs, you are not in a fair use situation.
I’m not sure why Bricker posted this section, since he has to know it doesn’t apply.
Gfactor, i’m not sure exactly what your citations are supposed to show. Are you trying to demonstrate that ripping a CD for personal use (backup, mp3 players, etc.) IS or IS NOT a noninfringing use?
Because, whichever you’re arguing, it seems to me that those citations don’t help you very much.
First of all, the document and the webpage both involve a submission to the US Copyright office by content producers like the MPAA and RIAA. That submission details the way that the industry wants copyright to work.
Now, i realize that the content of the DMCA certainly gives the impression that American copyright law is written by the recording industry, but the fact is that, just because the RIAA or the MPAA says that something isn’t a noninfringing use, doesn’t mean that it isn’t, in fact, a noninfringing use.
Also, the ArsTechnica webpage actually demonstrates that the recording industry has, in fact, previously taken the position that copying music to a hard drive or mp3 player DOES constitute a noninfringing use.
Here’s the quote, made by a reording industry lawyer during the rather well-known Grokster case:
As the ArsTechnica foilks note, the industry has apparently now changed its mind about this. But it’s wrong to say that the industry has never considered such copying to be a noninfringing use.
I’m not making a comment here on whether or not it IS actually a noninfringing use; it seems to me that the issue is still unresolved. I’m only pointing out that, absent any context or explanation from you, your citations don’t really tell us whether it is or not, because (a) the recording industry isn’t the final arbiter of the law, and (b) the industry itself has taken contradictory positions on the issue.
I thought a “format change” was legal, originally fought in the battles to make a cassette copy of an LP for use in your car.
Wouldn’t copying the CD to my hard drive be similar?
The argument against that is for digital copying. Analog copying inevitably brings a slight degradation to the music. Digital copies, however, theoretically cannot be differentiated from the original. The industry did a quick about face when CDs started replacing tape as the copying medium.
Clause 4 says that you’re supposed to look at the economic impact, which in this case is minimal, since users are copying works they have already legally purchased.
The copyright holders have themselves acknowledged at oral argument that copying your own material is not infringement.
Can you point to any case law that suggests otherwise?
You are right. My post needed some explanation. I got distracted by work.
My point was not about what the industry says. The full quote (again sorry for the sloppy post) is:
So what I intended to say (but didn’t) is that the Register of Copyrights, as recently as 2003, noted that no court or other body has ever recognized a “right” to make a back up copy.
Here is the document in which the Register analyzes backup copying: http://www.copyright.gov/1201/docs/registers-recommendation.pdf (106). The analysis is far from definitive, but I’m merely relying on it for the assertion that there are no cases on the issue.
Given the lack of authority on either side of the question, the best answer is that the law is ambiguous, but that there is no safe-harbor provision. Those who make back up copies for their own personal use are unlikely to need to test the issue.
The OP, on the other hand, presents a different question: Can you make a copy as a “back up” and then sell the original?
a. As indicated, there is no “right” to make back up copies, especially when changing the format.
b. Unlike the maker of a true back up copy, the maker of a pretextual back up copy is benefiting commercially from the sale of the original, and reducing the potential market for the copyright owner’s goods. Also, as Exapno Mapcase has pointed out, copying an entire work is seldom found to be fair use. Cases say wholesale copying “militates against” a finding of fair use. (I cited some of them in a previous thread, but I’m too busy/lazy to search for it.)
There are a few statutory “special cases,” which involve blank media for which a royalty is included in the price. But this isn’t one of them.
You can (eventually) read all about it in my upcoming staff report.
Sure, but it seems to me that there are many cases in the law where there is no recognized right TO do something, but where doing that thing will not get you in trouble. I guess what i’m saying is that, just because no-one has formally recognized a right to copy music for your own use, this doesn’t necessarily mean that doing so is a breach of the law.
I think that, for practical purposes, this is exactly how the issue currently stands.
The problem, though, is that even if the issue is resolved at some future time, and if it is determined that we are, indeed, allowed to make backup copies for our own use, the DMCA will still make doing so illegal, because it prohibits breaking the encryption on any encrypted media.
So, we might end up with the absurd situation where we’re officially allowed to make backup copies, but we can’t do it because almost all media is encrypted, and breaking encryption is, by itself, a violation of the law.
By succeeding in getting this provision included in the DMCA, the record and movie industries have effectively done an end-run around any future discussion of the legitimacy of making backups. They can say, “Well, sure you can make back-ups, but if you break the encryption to do so we’ll get you that way.”
Well, as far as copying your own music and THEN seeling the originals, i absolutely agree. All my arguments so far have assumed that you keep both the original and the copy for your own use. Copying it, and then selling the original, i a completely different kettle of fish.
On a related issue, i wonder what you think of the issue of pricing of the originals.
Content producers (record companies, movie companies, etc.) constantly defend the price of their products by telling us that the medium itself (videotape, CD, DVD, etc.) is a negligible part of the cost. The reason these things are so expensive, we are told, is that we are paying the artists and the producers and the technicians and all the other people who put the work together. We are, essentially, paying for a license to view the content, not for the media itself. Fair enough.
Why then, if accidentally scratch or break my copy of Batman Begins, rendering it unplayable, can’t i take the disc back and get a replacement for a nominal price, equivalent to the cost of buring the movie onto the blank media? After all, i’ve already paid for all the actors and director and producer etc. by buying the thing at full price in the first place.