The recent bugaboo over file sharing and RIAA lawsuits has got me wondering about used CD’s. What’s the legality of selling them? Do the record companies get any money from the stores or services like Half.com? What about eBay? Is it like radio where they pay a certain fee for the right, or like bars that pay money to ASCAP or BMI so bands can do covers in their joints? In other words, do the labels have the legal right to say what you can or can’t do with a CD after you buy it?
I remember a few years back there was a big to-do about this, with the labels getting all huffy and Garth Brooks playing the roll of Lars Ulrich as the industry lapdog. Now, with the proliferation of online used CD sites, stores and the aforementioned RIAA Gestapo tactics (am I revealing too much about where I stand on this issue?), it’s got me wondering. Any help or info would be most appreciated.
My guess is that the labels consider file-sharing so much of a threat they dropped the used CD fight. You don’t worry about a pomeranian licking your toe when a rabid lion is chewing your intestines.
IIRC, if there was ever a legal battle over selling used CDs the RIAA (or whatever it was back then) lost, big time.
I’m sure someone will be along with a cite refuting this, but I’m certain that you can sell a CD, tape, DVD, computer software, etc. so long as you transfer or destroy any personal copies you may have made.
So, for example, you can sell your CD to a used CD store and they can sell the CD to someone else. At any one time the ownership of that CD provides one owner the right to use the music, etc. for his/her personal use.
If you transfer ownership, whether selling or giving it away, you may not keep a personal copy.
So wait…that means my friend who got me to make her a copy of Blue Mountain’s Homegrown album because hers - which she bought from the band at a show, for what that’s worth - was destroyed is breaking the law? Or am I?
Matt
Does seem a bit silly, doesn’t it. Pardon me if I’m flogging the ol’ desceased equestrine on this one, but a couple more questions for you groovy people:
Am I breaking the law if the artists says I can make copies (as a friend of mine who’s on New West Records has done)?
Why is it breaking the law if I give the CD to my friend (the one who’d already bought it beforehand) if no cash is exchanged and she’d already paid anyway?
Is it against the law if the artist him(her)self makes copies?
What if I made her a copy that didn’t include all the songs from the original album?
What if the album in question is out of print? Or the label is out of business?
I’m sure I’ll think of more forthwith…
Thanks again…
Backslider, I believe that you would technically be violating the letter of the law, but in the same way that going 56 in a 55 is technically violating the letter of the law. I woudn’t worry about it. I’m guessing the RIAA isn’t going to be breaking down your door anytime soon.
No, unless your artist friend is signed to a label whose contract stipulates that the label owns the copyright to the CD.
If you give your friend your original copy of the CD, you’re certainly not breaking the law. If you give your friend a copy of your original CD, you’re technically breaking the law (you’re only allowed to make a copy for ‘personal use’). The fact that your friend owns/owned an original copy of the CD is technically irrelivent.
Probably not, as long as their label doesn’t own the copyright (or the label owns the copyright but allows the artist to copy it freely).
This is probably a copyright violation as well. Fair use doctrine allows you to copy a portion of the work (generally, IIRC, less then 10% of the total work) without committing a copyright violation. However, this begs the question: is the ‘work’ defined as one song, or one album?
The fact that an album is out of print is techincally irrelevent. If the label has going out of business, most likely someone (person or corporation) bought the rights to the copyright when the label folded.
I’m sure other, more knowlegable minds will be along to correct me shortly.
Generally correct, jweb, except for one misconception.
No, you are not. Only the copyright holder can decide who can make copies and under what conditions.
Whoever makes the copy is violating the law.
Suppose CD copying did not exist. Suppose you owned a CD for several years, but you lost it. Could you go to a record store and expect to replace it for free? So why should you expect a free replacement by copying it?
Ultimately, the question is this: if an artist says “don’t make copies of my work” (which is what a copyright means), what gives you the right to overrule him?
Not quite… there are vague exceptions for fair use (I’m not sure if the “personal backup = fair use” argument has been tried in court, but that’s what the makers of commercial software like DVDXCopy have claimed), and if you use a standalone CD recorder and music CD-R media, noncommercial copying is perfectly legal under the AHRA.
Looks like MGM v. 321 Studios is a current case testing the legality of personal backups, though there are other issues involved (the DMCA doesn’t make exceptions for fair use). The Electronic Frontier Foundation claims that fair use does include personal backups:
Once again, thanks again for all the answers. This is all very interesting, and I have two more questions:
If it was illegal to make copies in the first place, why didn’t the music industry clamp down on CD burning devices anyway? Related…a friend in the production business tells me that non-computer burners and recordable CD’s pay a special fee for the ability to make copies of CD’s. If that’s the case, why can’t they just establish some sort of added fee on burners and/or blank CD’s?
I make mix CD’s for work. I work at a restaurant and my original copies would be destroyed by the atmosphere in the kitchen (grease in the air, mainly). Plus, it means I don’t have to carry two dozen CDs in for a normal six-hour work day. I suppose this too is illegal as hell, correct?
Thanks again, y’all, for all the info. And jweb, I’m not too worried about the RIAA thugs kicking my doors down. Hell, I figure by the time they would, they’d have to fight off Ashcroft’s boys busting me for my advocacy of the noble weed
There are plenty of legitimate reasons to burn CDs, and even to duplicate copyrighted discs. The industry failed to stop cassette recorders and VCRs for the same reasons.
The problem is that people who buy 100 CDs to back up their hard drive (or burn their own music and files, etc.) don’t want to pay a royalty to the music industry. Canada has imposed a royalty on all CD media, but not everyone was happy about it.
I believe that would qualify as fair use, but it’s something for the courts to decide.
