Can I legally copy my music then sell the originals?

Agreed. Unfortunately, the way copyright law works, copying is a violation unless it is somehow carved out by statute or judicial exemption. Here, we have to rely on a possible exemption whose application is not clear. So it’s less a case of an act that is not forbidden, but also not expressly permitted. It’s a case where the act is forbidden, but might qualify for an exception. In other words, the problem here is that we don’t know whether the act is forbidden under the general rule or permitted under the exception.

Your points about encryption are good. And they suggest that there may be methodological problems that moot the issue.

I was a teen when they were first introduced. I couldn’t afford them. The pricing, to me, is still too high. I almost never buy new CDs; most of the stuff I like is available used. So until the industry succeeds in eliminating the first sale doctrine, I’m ok.

I’m with you on that one, too. This is one of the reasons consumers don’t take music copyright seriously. OTOH, if I buy a book, and then lose it, I can’t get a replacement for that by paying the cost of reproduction either. This is one of the justifications given in cases like Williams & Wilkins (on copying entire journal articles for scholarly purposes)

As my copyright professor put it: “Then you’ve got a copy to spill coffee on.”

Doesn’t matter. All four clauses are to be considered equally.

Can you point to any case law that specifies this is not infringement? Gfactor can’t seem to find any.

If you do, BTW, I’ll still bet it wasn’t decided as a fair use issue.

Are you relying on some case law here? I can’t find any particular guidance on how to weigh the various factors, and what weights certain fact patterns have.

No. But I take the oral argument concession of the RIAA, the default plaintiff in these cases, as being of great weight.

Indeed, as far as RIAA is concerned, the doctrine of judicial estoppel might bar them from asserting a contrary position. *See, e.g., * Virginia State Bar -

The factors are not even exclusive, and there is no rosetta stone that explains how they apply. I can cite some stuff on this when I get home tonight. Bottom line though, courts have refused to give any sort of bright-line test. They apply them on a case-by-case basis.

Like I said:

(citations and footnotes omitted) Campbell v. Acuff-Rose Music, Inc. (1994)

Actually, I was thinking they might be equitably estopped. But yeah, you get the idea.

Actually, for people who uploaded before the RIAA changed its position, that’s probably true too.

Dunno; perhaps one is not expected to do it at all.

Online Music Sharing is Wrong, in Torr, James, ed., Internet Piracy (2005)

I can’t quibble with this much. But from the third bullet down they aren’t talking about non-infringing uses–they are talking about things that “won’t raise concerns.”

Some changes are legal thanks to the Audio Home Recording Act:

The statute was enacted in 1992. It comes with a very technical set of definitions

Well, yes and no.

In RIAA v. Diamond Media Systems, 180 F.3d 1072 (9th Cir. 1999) the Ninth Circuit held: computers aren’t covered by the statute, more general fair use principles apply to its use in copying.
The issue in the case was whether the Rio mp3 player was a digital recording device. RIAA sought to enjoin the manufacture and distribution of the device because the RIAA claime that the Rio was a digital recording device that did not comply with AHRA. The court held that it wasn’t a digital recording device. The case didn’t deal directly with fair use. But the court likened use of an mp3 player to “space-shift” files with the use of a VCR to “time-shift” television shows.

This passage suggests that the court would find such copying to be fair use. Greene, Stephanie, Reconciling Napster with the Sony Decision and Recent Amendments to Copyright Law (2001). This supports Bricker’s argument.

The Court acknowledged its holding in Napster (2001):

So there is some authority that suggests that personal non-commercial space shifting is fair use. Also, the point was conceded by RIAA’s counsel during oral arguments in the *Grokster * case.

But some, like the Register of Copyrights, disagree. In her 2003 Recommendations, she analyzed claims that there was a right to make backup copies of DVDs:

The same logic could apply backup copies of CDs using computers. There is little authority to support the fair use argument. Congress enacted a statute that provides a method to back up CDs. It doesn’t include using a computer. (I would expect Bricker to find this argument appealing, but something tells me I’d be wrong. :D) And the convenience does not make a use non-infringing.

On the other other hand, courts don’t give the Copyright Office’s interpretations of statutes much deference, especially in cases of first impression. The Patry Copyright Blog: Judicial Deference to Copyright Office.

Where does that leave us? Pretty close to where we started.

The District Judge in Napster was skeptical about the space-shifting argument:

114 F. Supp. 2d 896, 915-16 (N.D. Ca 1999).

The *Aimster * court similarly limited *Diamond Multimedia * to its conclusion that the AHRA did not apply to the devices in question. 252 F. Supp. 2d 634, 649 (N.D. Ill. 2002).

While I admire and respect Gfactor and Bricker’s intensive legal review of the subject matter, my own view on this more as a moral issue rather than a codified law issue. You purchased something and then sold it (along with the copyright) for some fair amount (fair being, you accepted the payment) but still beleive that you have a right to have access to it after you sold it. The law I would quote would be “Thou shall not steal”. You would be stealing from the artist (that you supposivly admire) his right to paid for his work. He get’s paid by people by his “official” recordings.

Myself, I still have about 200 LP’s left over from college, and alot of the same material on about 300 CD’s. I’ve loss track of how many tapes, 45’s and 8-tracks I’ve had. I’ve taken the time to download “my” stuff onto my iPod and “my” Bose LS48 system because I love music. I don’t use my love of music as an excuse to steal from the people I admire the most, recording artist. If you can’t afford to purchase it, listen to the radio.

And then there is this proposed legislation:

Emphasis mine. Source:


My point is, there must be an allowance or provision for such use, no? Apparently that’s still up in the air.
I think (hope) this will boil down to whether or not one has access to and owns the original copy. If the original is on my bookshelf at home and I have the copy on my MP3 player, that’s reasonable, since the copy is on my person. The copy is not in the summer house up north or on my computer at work while I’m not at those places. I’m carrying the copy with me and the original is at my primary residence, not at my friends house or some other place.
I could see the RIAA not having issue with this if some guidlines are in place to allow them to prosecute offenders.

I could see something like a ‘100 foot rule’ where the original must be within 100 feet of any copies and then you are allowed to have only one copy on any portable device as long as that device in on your person.

No, there doesn’t have to be allowance for such use. If it’s illegal, then it’s illegal, period. It doesn’t become legal because you would personally find it convenient.

Conversely, if it’s legal then provisions like a 100-foot-rule are meaningless.

You place entirely too much faith in the reasonableness of the recording industry, a faith that they have done nothing to justify in this whole debate over shifting music formats. Hell, i sometimes think that if it were up to them, you’d have to send them another check every time you place a CD in your player.