Ten Questions About Napster/Music Copyright/Etc.

Factual Questions
1

Hi there. Well, this is a summary of a letter I actually sent to the RIAA, to which they have not responded after 3 months. I actually sent it twice, and received no reply. Curious behavior for an organization that says music piracy is a “plain and simple issue” and that they have “nothing to hide”…but maybe they get a lot of these sorts of letters and are swamped.

So, what I would like to know is if these simple-sounding questions have a simple answer, with cites to support the answers that anyone is kind enough to supply. The reason I ask for cites is that this issue apparantly gathers much mis-information and “guesstimates” of what the law really is. What I am searching for is the Last Word on some simple questions about music copyright. It would be nice to have a thread which is the “last word” on some of these issues, so the thrice-daily Napster thread could be pointed towards this.

It would also be nice to only try to answer these as questions of fact, not a debate over Napster or the issue of copyright per se.

Well, here they are:

  1. I own a CD of an album or song. Can I download a song from that album if the CD is in my car downstairs, or in the other room, and like the Comic Store guy on The Simpsons I have been defeated by the Evil Captain Leather Computer Chair?

  2. I own an LP/45/8-track of an album or song. However, I have no LP/45/8-track player to play the album or song with. Can I legally download the album via Napster?

  3. I purchase a CD legitimately, and then believe it is lost. Can I download the songs via Napster rather than find it?

  4. I purchase a CD legitimately, and then know without a doubt it is lost, stolen, or destroyed. Can I download the songs via Napster rather purchase a new one?

  5. I own an LP/45/8-track of a specific song - say “Canned Heat” by Jamiroquai (3:17 minutes). However, there are also two longer, extended dance versions of the same song (5:30 and 3:46 minutes). Assuming I can download the song (question 1) since I have a copy on CD, can I also download the “alternate” versions of it? (on this one, I’m guessing ‘no’, but have to see if others know)

  6. I loan a CD to a friend. While the friend has the CD, I want to hear a song from it. The friend is not listening to the CD, as she left it at work and cannot get it to me. She has no intention of listening to it again, but it is in her possession. Assuming the answer to question 1 was yes, can I download the song?

  7. (True story, happened in Lawrence, KS when I was in college) A local band plays at a block party, and tells everyone that it is illegal to record them in any way, shape, or form. This is in a public street. People on the corner bring out a tape recorder and record the music from their property. Have they broken the law?

  8. Although few do this anymore, can I burn a CD of songs I record from the radio, for my personal use?

  9. Yes, this one does confuse me. Do I have the right to make one backup copy for my personal, archival use, of CD music media?

and finally, because Una’s Rule says a list this long must reach 10,

  1. Hi Fierra!

So…anyone up to the challenge?

2

Just my opinion, of course:

#1, 2, 6, 8, 9 - Yes
#3, 4, 5, 7 - No
#10 - Huh?

3

Here are the ones I could find right off the bat:

#7: Yes. The people recording have borken the law. According to 17 USC 1101,

(a) Unauthorized Acts. - Anyone who, without the consent of the performer or performers involved -
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

#9: (Number nine . . . number nine . . . sorry, having a Beatles moment.) According to the letter of the law, no. The law as written (17 USC 108) allows for copies to be made by libraries and archives that are open to the public or for research purposes, subject to very specific provisions. As a practical matter, it usually isn’t considered a big deal to make a copy for yourself. When you start giving them away to friends, it’s another matter altogether.

#4: I don’t yet have a cite, but my instincts tell me it’s a no-no. Purchasing a CD doesn’t give you the unlimited right to have those songs in your possession by hook or by crook.

I’m looking for cites on the others, although I suspect the answer to most of them is “no.” There may not even be decisions in case law relating to questions of that nature.

4

Thank you greatly, phil. Two down with cites, one with a possible upcoming cite (certainly better than I managed).

5

I note there is no exemption given for a citizen who records the performance as evidence for a civil claim of “disturbing the peace”. Interesting. I wonder how that would work IRL?

6

I suppose you could just record a representative sample of a song or songs, which would be sufficient to prove your case later. This would be analogous to reproducing a short quote from a book or article, instead of copying the entire work.

Arjuna34

7

First of all, thank you all for your responses so far --they were on point and tried to answer the factual questions in the OP.

This is important!!!. Napster is one of those hot-button issues that people always try to turn into a Great Debate.

This thread is not about whether the RIAA is evil or stupid or about whether morals have declined or whether the law ought to be changed or whatever.

And I am tired of people thinking that they can hijack a legitimate GQ thread on the assumption that good old manny or Chronos will shoot it over to Great Debates.

Let me be as clear about this as I can. Anyone who tries to hijack this thread beyond it’s factual paramaters will be banned from this message board

Thank you for your attention to this matter.

8

The actual answers:

No. Owning the CD does not give you the right to download copies onto your computer*. Owning a CD has no effect on the right to copy.

No. Owning the LP etc. does not give you the right to download copies onto your computer. Again, owning a version of the song gives you no rights about making copies.

No. Again, owning the CD has no legal relevance.

No. See my other replies.

No. Owning the CD has no legal relevance.

No. Should I repeat myself again?

This has been covered. They have broken the copyright law.

No. Making a copy on a CD is a copyright violation.

No. You know the drill. :slight_smile: The confusion from this is because very often software will grant you the right to make an archival copy in their license agreement. The reason they grant you the right is because you don’t have it otherwise.

*You can make copies in all the cases on cassette tapes without being sued for a violation (though it is technically a violation). This is because cassettes, reel-to-reel, and DATs are “approved media.” Computer hard drives and CDs are not.

9

If I’m interpreting RIAA’s site correctly, mini-discs are also an approved medium. Also, this quote:

from the same link implies to me that audio CDs recorded with a consumer CD burner are OK, as long as royalties are paid (part of the cost of an audio CD), and some copy control mechanism like SCMS is in place (which consumer CD burners have). This means that using your computer isn’t OK, because SCMS isn’t present, but using a consumer CD recorder is, if I’m reading it correctly. Of course, to use a CD recorder, you’d have to have an original to copy from, and if it’s digital, the SCMS will prevent you from making multiple-generation copies.

Arjuna34

10

Well, thank you for the responses, RealityChuck. However, the issue is that I have heard quite the opposite on many of your points from others here in the past, especially w.r.t. questions 1 and 2. I’m not saying you are incorrect on any point, but on what grounds are you basing your answers?

11

Yes, I did ask manhattan before posting this thread. :eek:

12

I’m basing my answers on the copyright law. Section 106 clearly says:

Only the owner of the copyright has the right to make copies, as this says. He can grant permission, but no one can make copies without his permission. An MP3 is, by definition a copy.

Now, people sometimes bring up the concept of “fair use.” Unfortunately, few know what “fair use” really means. Here’s the entire paragraph:

Note the purposes elaborated in the first paragraph. They do not include mere entertainment or to replace a lost copy. Also check points (3) and (4). Fair use has to be determined on a case-by-case basis, but precedence says you can’t claim fair use if you copy the entire work (3) or if copying has a negative effect on the potential market (4). The court denied Napster’s claim of fair use under point (4).

Why you buy a CD, you own the CD. You can play it, sell it, lend it, rent it, or use it for skeet shooting. It’s yours. What you don’t buy is the right to make copies. You have to have the permission of the owner to do that.

There are other limitations on the owner’s exclusive rights. Libraries and employees of a library can make archive copies for library use only (not personal use – though this part may also add to the misconceptions about archive copies). The law also makes clear what I said in the previous paragraph – no one can ask royalties if you buy a CD and then sell it to someone else. There are also some limitation on certain types of performances and the ability to make transient copies – like a cache on your hard drive. MP3s don’t fall under any of these.

Arjuna
You are correct. I drew my list from memory, so left off the mini-CDs. Also, as you point out, burnable CD-ROMs could be made into approved media, and, IMO, they probably will. I don’t believe they are at this moment, though.

13

With some trepidation, I’ll take a stab here, by providing a long non-answer, and trying to justify it. There are a couple cite’s, though.

I don’t think a definitive answer is actually possible under the current statutes, which is why legislation and court rulings are pending.

Copying of media you already own for your own personal use is generally covered under section 1008 of the copyright law:

This is read as a general concession that the consumer may, for instance, copy a CD to a tape for the car, as long as they don’t resell/redistribute it. A broad reading of that last clause would suggest that ANYTHING for non-commercial use is OK (WHY do laws have to be written as giant run-on sentences, BTW?). But, when applying it to napster, we have to question the legality of the thing you are copying in the first place, as well as what “commercial use” is. RIAA would argue that having purchased a legal copy of a work doesn’t give you the right to use an illegal copy - section 1008 merely gives you the right to make private MP3’s for your own personal use from legal copies. The argument would be that an MP3 provided to the public at large through napster becomes “commercial use”, and thus illegal, even though you don’t make a dime from it.

The applicable body of law that seems to come into play here is “fair use”, which is incredibly subjective, and has been at the root of numerous copyright violation cases for years:

“fair use”, for instance, is what allows me to quote a paragraph or two out of a copyrighted work here in the course of a discussion without violating the author’s copyright. Although not explicit in the statute, it also has been read in the past to provide a “convenience” argument - if use of a copyrighted work is merely a convenience for a legal holder of the material, it’s OK. You may be able to argue that use of a napster recording to avoid having to dig out your legal copy is such a convenience, but:

Note that the law only suggests determining factors that are to be considered on a case-by-case basis: it is NOT clear cut. The killer is item (4). Does downloading a napster copy, for instance, prevent you from going out and BUYING a replacement for a copy you have lost? NOT fair use, then.

14

FWIW, I just simulposted with RealityChuck, so I wasn’t considering the points in his article. We both brought up fair use and said about the same things. I would just suggest that section 1008 modifies the “unauthorized copying” issue. At least, that section has apparently been upheld in court as allowing you to make “private use” copies.

15

I can answer this one. Based on the sheet music I’ve seen in high school and college band, different arrangements of the same song have different copyrights. Presumably, then, any rights you might have for any reason to one of them would no more extend to another than they would extend to a completely different song.

16

Hmmmm. Sounds to me like there is a lot of gray area here.

Look at point number 7 in regard to not being able to bring a tape recorder to record the band on the street. What if you had a camcorder and were videotaping something going on along the street and pick up the audio from the band. Is that legal? If a band is playing loud enough there may not be anyway but to record them.
Also, if all of this recording off of Napster and making copies of your CD collection is illegal, does the law expect us to turn in our neighbors for doing so? Has anyone been charged with a crime for downloading off of Napster yet? I would hate to think mp3 files could be regarded as “audio pot” or “musical marijuana”.