MP3s, lost CDs, and IP rights: a hypothetical.

Here’s the scenario. I own a bunch of music CDs, all of which I have bought fair and square. I have ripped most of this music into MP3s for convenience, but I keep the original discs, both as backups and to listen to in my car. As far as I know this is both legal and ethical. Now imagine that while driving one fine day I leave my CD holder on top of the car when I drive off from the little diner at which I had stopped for lunch.

First question: can I morally, ethically or legally KEEP the MP3s I have ripped from these discs, even though I no longer posses the original? My instinct tells me ‘yes.’ As long as I don’t sell the originals, I should be able to keep the copies.

Now further imagine that a waitress at this diner finds my CD case with some CDs in it. After going through whatever process is required to keep lost property (since I’m an idiot I didn’t put my name in the case) the waitress comes into possession of my CDs.

Morally, legally or ethically can she keep them and play them? Again my instinct says ‘yes.’

However, we now have two people listening to the same music, separately and simultaneously, with only one copy having been paid for. This is seems like it is both illegal and not ethical. How do we reconcile these two positions? If I lose my discs am I obliged to delete the MP3s on the chance someone finds the discs and plays them? If I find a disc, do I not get to keep it because it may have already been copied?

This is a really interesting question, IMO, so I hope a resident lawyer steps in and doesn’t let it die.

It seems to me that one way to slice this argument is as follows–

Legally speaking, the woman who found your CDs is permitted to play them by law (since she becomes owner if she exhausts all legal means in place to return them to you). Ethically, it also seems to me that since you paid for the CDs, you should be entitled to play back the legally obtained duplicate sound files on your PC. However, since in the above scenario, two copies of music exist with one paid for, and since the woman is now legal owner of the CDs, I think if any legal hay were to be made about this (and I doubt this would ever happen), you would have to delete the songs, as strange as that sounds.

I’ve a similar argument play out with video games as well–people by a game in 1995, lose the disc, and then get nostalgic and pirate it. Is it ethically justified? IMO yes, ethically speaking, because they paid for the game initially. Legally? Perhaps not. Your question adds an additional wrinkle in that the music files were made prior to the loss of the physical CD and were legal copies at that point.

It’s hard. I am not a lawyer; hopefully one will come by and dissect this.

I mangled that horribly. “I’ve seen a similar argument play out with video games as well–people buy…”

Here comes the tricky part. If the RIAA ever gets its way 100%, this will NOT be legal, and they would consider it unethical (though just about everyone else would say it is ethical.)

But, as it stands now, I wouls think that yes, you would be under obligation to remove the MP3s, since you do not physically own a copy of the CDs anymore. Now, the other tricky part comes in whether or not the waitress can rip or DL some MP3s.

To the best of my understanding, current law clears both of you to use (but not distribute) in that situation.

You lawfully purchased your CDs, and then made fair use of your property by ripping into a format convenient for your needs. You may continue to make use of your lawfully purchased property even if you are no longer in physical possession of the original discs. The analagous situation would be if you’d made a mixed tape (for example) using CDs you owned and then your house burned down. You could still use the mixed tape even though you were no longer in possession of the original CDs. Or if you’d made a photocopy of a book strictly for personal use and then the original was destroyed somehow. It is fairly well established by the case law in the area that making a personal copy of a copyrighted work for personal use (as a backup copy, in a mixed-tape situation, etc) is not a violation of the exclusive rights granted by 17 U.S.C 106. Provided, of course, the copy is really only for personal use (like ripping your own CDs onto your computer for your convenience - rather than ripping them to distribute them electronically to the world ala Napster, for example).

It might be problematic for you to prove that you at one point owned the CDs should it ever come up for challenge, though. Of course, it will also be difficult for them to prove that you didn’t own the CDs (as long as you ripped from your own CDs as opposed to downloading from shared sites).

The waitress is a slightly more difficult case, in that she did not purchase the CDs personally. However, given the facts you provided, she did come into possession of the CDs lawfully. She didn’t purchase them, but neither did she download pirated versions of the copyrighted work from teh Intarweb. The Copyright Act actually provides for an owner to resell their property. (If interested, see 17 U.S.C 109.) I would imagine this situation would be viewed as a solitary resale (even though no resale actually took place). This is not because sale actually took place but because the net effect on the copyright owner is essentially identical. A transfer of copyrighted material between the original purchaser and a subsequent owner.

Provided that the waitress doesn’t proceed to distribute the tunes on the CDs far and wide, there is no difference idealogically between the lost-CDs situation and the original-purchaser-resale situation. In either case, the copyright holder has only been afforded their royalty once (at the time of original sale).

This is essentially where copyright law intersects with property law. One of the basic tenets of property law is that to have a meaningful property right, one must be able to dispose of one’s property via resale (this is referred to, for complicated linguistic reasons, as free alienability). The US legal system frowns on things that put limitations on free alienability of property. Hence, copyright protections are limited to allow free alienability of the personal property (artwork, books, CDs, etc).

The Copyright Act therefore does not prevent the purchaser of copyright protected material from selling his or her property. However, this does mean that if you resell the property (like the CDs), you have no right to make further claims congruent with ownership. For example, if your hard drive crashes out after you misplace your original CDs, you don’t get a pass on re-downloading your songs for free because you bought them once. That might be ethically acceptible, but not legal application of the concept of “fair use” in this situation.

This is a situation in which property law > copyright protection. A person in legal possession of copyrighted material is entitled to enjoyment of that property. Even though there wasn’t a sale in this case, the waitress came into possession of the CDs in a lawful fashion by following all established procedures to reunite found property with its owner. Property law treats such situations as though the waitress had legally purchased the property in an original purchaser resale, so copyright law is compelled to treat it likewise. In other words, her title to the property is good, therefore copyright law is obliged to treat her title as good and afford her all the rights and responsibilities of an owner of copyrighted material.

So, to sum up, you can use your ripped files and she can use the CDs secure in your adherence to the law. Hopefully, it wasn’t too confusing!

I recommend looking at the current series of articles being put up by the Staff on the main site about copyright infringement. :slight_smile: