Downloaded music????

[JFLuvly]

From a Pit thread about a women being fined 1.9 million for downloading music.

mswas

Shouldn’t it be the responsibility of the plaintiff to prove that you have never purchased those pieces of music before? I lost a ton of CDs, am I not allowed to have any of that music because I no longer have the hard copies? What about stuff I have on vinyl?

I have always wondered the same thing. When I was a teenager I had hundreds of cassettes and vinyls. Is it illegal to download these songs that I have already paid for so that I can have them in a digital format?

When we were kids we all traded mixed tapes and recorded songs off the radio and I don’t recall anyone ever getting their back up about it. I am pretty sure this happened all across North America, so why all the crap about it now, aside from greed?

As a side note, I have done work in the recording industry and the music business in general and to be honest I think downloading could be the best thing to happen to music in a long time. Maybe without all the money being floated around the industry we will get back to people making music for the love of making music instead of throwing out overproduced, cookie cutter garbage from “artists” whos looks and lifestyle are more important than their talent that seems to be the norm lately!

Sorry 'bout the rant at the end, but I had to get it out…lol

[RealityChuck]

@JFLuvly

I have always wondered the same thing. When I was a teenager I had hundreds of cassettes and vinyls. Is it illegal to download these songs that I have already paid for so that I can have them in a digital format?

Short answer: Yes.

It’s a copyright violation to make copies without permission. By downloading a file, you are making a copy. Thus, you are violating copyright. Q.E.D.

And, no, you do not have permission to make a backup copy (unless specifically granted). When you copy software, you are specifically granted the right to make that copy as part of the EULA. If you had that right, there would be no need to grant it.

And, no, you do not have any right to make archive copies – that’s reserved for libraries.

When we were kids we all traded mixed tapes and recorded songs off the radio and I don’t recall anyone ever getting their back up about it. I am pretty sure this happened all across North America, so why all the crap about it now, aside from greed?

Because you were allowed to make copies when you bought the tapes. The agreement was that audio tape manufacturers paid a fee (passed along to you) to make copies of material. (Technically, you weren’t granted the right to do this, BTW, but you were immune from a lawsuit if you did). Computers and digital storage are not covered by this agreement (they probably should be added, but no one has done this).

As a side note, I have done work in the recording industry and the music business in general and to be honest I think downloading could be the best thing to happen to music in a long time.

Perhaps you’re right. But what gives you the right to dictate this to anyone else? And if they don’t want the music shared, shouldn’t you respect their wishes? And if someone does not respect their wishes, shouldn’t they be able to take action to stop it?

[Thudlow_Boink]

@RealityChuck

And, no, you do not have permission to make a backup copy (unless specifically granted). When you copy software, you are specifically granted the right to make that copy as part of the EULA. If you had that right, there would be no need to grant it.

And, no, you do not have any right to make archive copies – that’s reserved for libraries.

What about transferring from one medium to another? ripping a CD (that you own) so that you can listen to it on your computer or CD player? Copying a record or cassette to your computer or to CD (using a USB turntable, for example, which wouldn’t have any legal uses if this were forbidden)?
And to the OP, I would point out that there are still people making music for the love of it. And that some of them are struggling financially, and that it takes money to make a recording.

[Swallowed_My_Cellphone]

@JFLuvly

From a Pit thread about a women being fined 1.9 million for downloading music.

She was not fined for downloading music.

[Acsenray]

It should be noted that the claim in this case was that the defendant distributed copyrighted works without authorization. In other words, she put up files that other Kazaa users could download. That’s a big part of the reason that the damages were so high. She also did things that hurt her credibility, like submitting a fake hard drive into evidence and changing her story regarding whether it was her or her kids or her ex-boyfriend who did it.

[JFLuvly]

What makes you think that I think that I have a right to dictate anything to anybody, I am only giving my opinon on the subject and I did not say anything about them not having a right to legal action.

I understand that it was for sharing, I was just generalizing by saying downloading.

I know many talented, struggling musicians and I know what it costs to record, I was just making a point about some of the garbage that seems to be around today from established artists. It just seems that by eliminating some of the huge profits, some of the struggling artists, who do it for a love of music, may have a better chance, that’s all.

[KneadToKnow]

Because they know people are going to make copies of their stuff, sales of blank CD-Rs labeled for “music” generate (or used to) money for the RIAA, just as sales of blank audio tapes do.

Cite

That link is a little old, and Wikipedia suggests that the situation may have changed, so I don’t know for sure if this is all still in effect.

[Chronos]

One difference between tapes and digital formats is that it’s possible to copy digital formats losslessly. If I have an original tape, and I make a copy for you, and you make a copy for another friend, and so on, pretty soon you’re going to end up with a very noisy tape. Such a tape might perhaps be enough for a listener to realize that it’s the sort of music they like, but they’re still going to prefer to get their own copy of the tape from the store rather than just depending on the noisy, nth-generation copy. On the other hand, if I make a copy of a CD and give it to you, and you make a copy and give it to a friend, and so on, everyone will always have just as good a listening experience as I do with my original. In this case, a copy, even a high-generation one, can serve as a real replacement for the store-bought original.

[Acsenray]

@Thudlow_Boink

What about transferring from one medium to another? ripping a CD (that you own) so that you can listen to it on your computer or CD player? Copying a record or cassette to your computer or to CD (using a USB turntable, for example, which wouldn’t have any legal uses if this were forbidden)?

The record companies have said that they permit someone with a legally purchased CD to rip it for use on their own, personal music players and computers (I assume this applies to vinyl too). However, they do not state whether they think that this would otherwise consider this infringement under the law. However, they categorically reject letting you do this to also make a copy for your brother’s or your best friend’s Ipods, though. Personal use means just you, not you plus other people living in your house.

[Oakminster]

@JFLuvly

It just seems that by eliminating some of the huge profits, some of the struggling artists, who do it for a love of music, may have a better chance, that’s all.

Why do you get to decide what constitutes a “huge profit”, and who should have their profit, be it huge or otherwise, “eliminated”?

[ivn1188]

@RealityChuck

Short answer: Yes.

It’s a copyright violation to make copies without permission. By downloading a file, you are making a copy. Thus, you are violating copyright. Q.E.D.

And, no, you do not have permission to make a backup copy (unless specifically granted). When you copy software, you are specifically granted the right to make that copy as part of the EULA. If you had that right, there would be no need to grant it.

And, no, you do not have any right to make archive copies – that’s reserved for libraries.

I’m sorry, this isn’t true. Your analysis is mostly correct, but you are neglecting a few important points. First, the archival copies distinction is more or less a dead
issue in modern copyright law. It has been subsumed into the normal copyright analysis.

Secondly, your summarization of copyright law is at best misleading. While in essence the act of copying is what is prohibited, it is a lot more subtle than you have made it out to be. It is fairly established that backup copies are acceptable for many media.

In this specific case, the Audio Home Recording Act (“AHRA”) explicitly allows the home user to make noncommercial copies of work:

@AHRA

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Downloading music that you have purchased in other formats has not been tested in court. There is certainly a valid argument that downloading a digital copy would be acceptable, since the act does not require the individual user to re-record the work – such as allowing a media company to copy VHS tapes to DVD.

Finally, EULAs have also not been tested in court, mainly because both sides are afraid of losing. however, there are a few cases which point to a EULA as being an adhesion contract and not enforceable. Certainly, the EULA is not a statutory construct; it is more akin to the company hedging its bets. Thus, the EULA is not a reliable guide to the actual legality of making backup copies.

@RealityChuck

Because you were allowed to make copies when you bought the tapes. The agreement was that audio tape manufacturers paid a fee (passed along to you) to make copies of material. (Technically, you weren’t granted the right to do this, BTW, but you were immune from a lawsuit if you did). Computers and digital storage are not covered by this agreement (they probably should be added, but no one has done this).

Perhaps you’re right. But what gives you the right to dictate this to anyone else? And if they don’t want the music shared, shouldn’t you respect their wishes? And if someone does not respect their wishes, shouldn’t they be able to take action to stop it?

I actually disagree with almost everything you’ve said here, but the AHRA does include royalties for copyright holders for many digital recording methods. As for the other stuff, it’s pretty debatable. Copyright law does not grant a perfect monopoly, because that is not the goal of copyright law. While thinking about the poor suffering artist who is being cheated out of her royalties does present an emotional scenario for strict copyright laws, the reality is generally not quite so simple, nor should it be.

[Oakminster]

@ivn1188

Downloading music that you have purchased in other formats has not been tested in court. There is certainly a valid argument that downloading a digital copy would be acceptable, since the act does not require the individual user to re-record the work – such as allowing a media company to copy VHS tapes to DVD.

How is downloading any different than copying VHS to DVD? When you download, you are creating a copy that did not previously exist, even if the copy is the same format as the original/source.

[JFLuvly]

Oakminster
Guest

Quote:
Originally Posted by JFLuvly
It just seems that by eliminating some of the huge profits, some of the struggling artists, who do it for a love of music, may have a better chance, that’s all.

Why do you get to decide what constitutes a “huge profit”, and who should have their profit, be it huge or otherwise, “eliminated”?

Once again where did I say that I get to decide this? Don’t put words in my mouth, it’s just my opinion! My original question was if I am allowed to download a digital copy of a song that I had already purchased in a different medium. The last part was just a small rant offering my opinion and to show my distaste for alot of todays music. They have no fear of me downloading any of it.

[ivn1188]

@Oakminster

How is downloading any different than copying VHS to DVD? When you download, you are creating a copy that did not previously exist, even if the copy is the same format as the original/source.

It’s not any different. You are allowed to make copies from one media to another.

Here’s why:
Copyright law isn’t about physical copies. Copyright law is about this mysterious idea of intellectual property. Only in the last few decades has it become feasible for people to make copies of works easily, and the law has not really caught up, in part because everyone is scrambling to make sure that their preferred solution is the one congress and the courts adopt.

It’s easier to think of copyright as a license to use the information comprising the work, and modern law has been slowly moving toward this interpretation.

The real problem is defining the word “copy”. The general meaning is to make another instance of the same information, which is the definition we use in day-to-day life. But the word copy has a different meaning in the law. A copy for the purposes of copyright law needs to meet several different criteria. One is the old “fixed in a tangible medium” standard, but there is another semi-unwritten assumption that the copy is a purposeful one. Copying a program into RAM so you can run it is not a copy in the legal sense (unless you’re in the 9th circuit, but MAI has been swept under the rug).

I would say that legally, if you purchased Led Zep IV on vinyl, then recorded it to tape, you are not creating a legal copy. You purchased the information that comprises an album, not the mere media. If you transmute that information into another form, you still have a right to listen to that information. It doesn’t matter if you make recordings in 40 different formats, there is no additional transaction that is going on. Selling your recording to someone else will transfer your right to the information to them. The media is incedental.

Hence, downloading, while making another physical copy, isn’t a violation of what the law is about (provided you own a right to the information). Otherwise, you can bet Apple would be a smoking crater in the ground as they were sued to oblivion for allowing people to copy their CDs to the iPod. Similarly, when you pay for a song on iTunes, all you get is the information, which helps to illustrate that information is the product, not the media.

Imagine that you had a scratched copy of IV, and your friend had a good one. He makes a tape copy for you, but you have your own copy of the album on the shelf. I see no reason why you should be forced to make your own tape copy – you purchased the music, and the song remains the same no matter whose physical copy you listen to. The law, where tested, agrees.

[Acsenray]

Ivn, your conclusions are … novel … viewed in the light of current jurisprudence. As it stands, you are able to load your CDs onto Itunes because you are explicitly authorized to do so, not because you hold some nebulous right in the information value of your purchase. If you damage your own purchased copy of a work, you do not have either an explicit or implicit right to create a new one from someone else’s copy. You have to buy another copy.

[sailor]

@JFLuvly

I understand that it was for sharing, I was just generalizing by saying downloading.

That makes as much sense as saying “I understand it was not for drinking tea but for speeding”, i.e.: none at all. Downloading does not include sharing, they are totally different things. It was not a generalization but a misspokation.

[JFLuvly]

sailor,

The way it was explained to me, sites like kazaa (not sure of the spelling) and limewire automatically put your downloaded music into a shared folder so that people can upload from you, hence file sharing. Where I come from downloading is just generalized slang. By the way, what the hell is “misspokation”? Google had no hits…lol

[ivn1188]

@acsenray

Ivn, your conclusions are … novel … viewed in the light of current jurisprudence. As it stands, you are able to load your CDs onto Itunes because you are explicitly authorized to do so, not because you hold some nebulous right in the information value of your purchase. If you damage your own purchased copy of a work, you do not have either an explicit or implicit right to create a new one from someone else’s copy. You have to buy another copy.

I’m curious as to what jurisprudence you are talking about. The AHRA is statutory and explicitly allows making copies for noncommercial home use. The source of the copy is not specified, but legal decisions in IT law after MAI track right along with my earlier post. That’s the “implicit” part. You are certainly allowed to use a different CD of windows than the one you bought, as long as you have a valid key, and not just because of the EULA.

Furthermore, the RIAA does not explicitly authorize anyone to make copies of any sort. In fact, the RIAA claims that such copying is questionable (it’s not) but that they aren’t going to “enforce” their rights (posturing). Perhaps they might consider my ideas “novel”, but I assure you that academia and most circuits do not.

I would be glad to see any cases you can dig up on this issue, but I don’t think you will be able to find anything. Especially with regards to your last statement, as I am not aware of any decisions, ever, dealing with which specific copy you use.

[Acsenray]

I’m curious as to your understanding of the Audio Home Recording Act. That statute’s purpose was to protect the makers of digital recording devices from secondary liability for infringement committed by the users of such devices. That assumes that there are some actions that such users might engage in that would be liable for infringement. The statute also requires the manufacturers of devices and recording media to pay royalties based on sales of those devices. In other words, the statute didn’t say that “copying is not copying.” It merely required an advance payment for copies. It also required copy protection technology to prevent copying from copies. So whatever copying that was authorized was allowed specifically because the payment for the copies had already been collected.

Section 106 of the Copyright Act gives to a copyright owner the exclusive right to make copies. There are a certain number of narrow limitations on this right (including an archive right for libraries and “ephemeral” copies), but there is nothing in the law that allows to to just make a free copy when you’ve damaged your own copy. You burn your book, you have to buy a new book. You don’t get to photocopy the library’s copy.

And what circuits exactly are you relying on for your conclusions? I’ll be surprised if you find any cases on this point, because I can’t imagine a lawyer making a straight-faced argument that his client should be allowed to make an unauthorized copy of a work just because he damaged his original one beyond repair.

In particular, I would be interested in specific evidence on this assertion of yours:

I would say that legally, if you purchased Led Zep IV on vinyl, then recorded it to tape, you are not creating a legal copy. You purchased the information that comprises an album, not the mere media.

Because, quite frankly, to anyone with any familiarity with copyright law, this is laughably off the mark. Making a copy is making a copy.

[ivn1188]

I see that you haven’t been able to find a cite. A googling of “Audio Home Recording Act” provides a multitude of sources. One, mentioned in the wikipedia article, is the intent of the senate:

[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86

Incidentally, that’s quoted from RIAA v Diamond Multimedia in a case interpreting the AHRA’s extension to making mp3s from CDs. Diamond won handily.

Secondly, if you noticed above that I pointed out that there is no case law discussing the ownership of the source of a recording. You are asking me to prove a negative, when it should be easy for you to provide a cite, any cite, to back up your position.

Finally, since this is GQ, a cite to some mysterious authority and calling someone’s point laughable isn’t very persuasive. I am highly familiar with copyright law. But the request still remains: Cite?