RE: Question About Music Copyright

[Edward Barrow <edward@xxxxxxxxxxxxx>]

I am reluctant to comment on this, given my somewhat limited knowledge of 
US law, but even so, it seems that Max Hyre's reply is, legally at least, 
plain wrong.  Morally or ethically, or for that matter practically, see 
below,  may be   different .

First, the Betamax case: that decided that it wasn't illegal to sell a VTR. 
It said nothing about the legality of copying, but if I recall it did say 
that there were legitmate uses of the machine, which could include 
recording a broadcast for time-shifting purposes, which might be a fair use 
under the fair use doctrine. Because there were legitmate uses of the 
machine, the film producers didn't have a case against Sony for selling it, 
even if most people actually turned out to use it for infringing. The film 
producers would have to sue those individual consumers if they wanted to 
put a stop that. (we had a similar but not identical case here in the UK, 
CBS Songs vs. Amstrad, which concerned the sale of a twin-deck cassette 
recorder with a facility to copy cassettes at high speed).. As I understand 
it, some of the arguments in the Betamax case were used to defend the case 
brought by the RIAA against the makers of the Rio portable mp3 device.

There is a piece of US legislation, the American Home Recording Act I 
believe it is called, which does authorise analogue home taping. But I 
understand that it strictly excludes the making of digital recordings. If I 
recall, it was the fact that this legislation came after the Betamax case 
that encouraged the RIAA to take up arms against the Rio; but the 
uncomfortable fact (for them) remains that it is not unlawful to make or 
sell a device that makes copies.

I think the answer to Ms Tedford's query, in the US as much as the UK, is 
strictly, yes, it is an infringement to make these copies. The answer may 
well be different in jurisdictions that have a well-developed private use 
doctrine, but private use per se is not a recognised defence in most common 
law jurisdictions.

But in the circumstances she describes, where the mp3 file is made for the 
private use of a person who already owns a fully-paid copy of the original 
(such as a CD), the damages that would accrue (and do not forget that 
copyright infringement is a mere tort, not a crime) would be negligible, 
and certainly not such as to merit litigation. The concern for the record 
companies is that the practice, if widespread, prevents them getting 
several bites at the cherry - it precludes the option of selling to one 
customer a copy for the home; another for the car; another for the portable 
player. I believe that they have, to a large extent, now admitted to 
themselves that they have to abandon any hope of exploiting this type of 
market. In meetings to discuss possible digital rights management systems, 
I have heard representatives of the industry concede the notion of a 
"personal zone", within which they would be happy for the consumer to play 
and store the music in whichever format, and on whatever device,  they 
choose.

I think even Mr Hyre would agree that it is almost certainly unlawful to 
distribute mp3 files or other copies of the work to friends and relations; 
it is much easier to see that this does undermine sales of the original. 
 And while I broadly agree with Mr Hyre's characterisation of the purpose 
of copyright, I would add that it also provides a mechanism by which many 
people can each pay a little towards the cost of creative content. 70 
minutes of music may cost, say $20 on a CD; but it costs a very great deal 
more to produce 70 minutes of original music.

Edward Barrow
New Media Copyright Consultant
http://www.copyweb.co.uk/
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On Tuesday, December 17, 2002 3:18 PM, Max.Hyre@xxxxxxxxxxxxxxxxxxxxxxx 
[SMTP:Max.Hyre@xxxxxxxxxxxxxxxxxxxxxxx] wrote:
>    Dear Ms. Tedford:
>
>    Sorry about the delay, but since no one else has answered, I'll
> give it a try.
>
>    The short answer is:  Your students are right.
>
>    The long answer is:  Such moving of legally-owned works is entirely
> legal (at least in the U.S.), and is recognized as such in the
> U.S. Supreme Court's Betamax decision, in which it held that not only
> is copying of a work allowed to the owner (that's ``owner of a copy'',
> not ``owner of the copyright''), but also to those who simply *view*
> the work.  Specifically, it said
>
> 	The sale of the VTR's [sic] to the general public
> 	does not constitute contributory infringement of
> 	respondents' copyrights.
>
> (Court's summary at http://hrrc.org/html/betamax.html, full decision
> at http://hrrc.org/html/majority.html et seq.)
>
>    Thus, the Court said it's OK to sell folks the means to copy TV
> broadcasts off the air.  The original broadcast is a performance (of a
> work) they haven't paid for, but it's still OK to copy it.  How can
> fewer rights attach to a copy one *has* paid for, and owns in fee
> simple?
>
>    Notice further that the whole point of copyright is to aid the
> spread of knowledge, be it ``Gone With the Wind'' or ``Principia
> Mathematica'' (Russell & Whitehead---I don't know whether Newton had
> access to copyright.)
>
>    Thus, transfer of one's own CD-ROM to an MP3 player, or to a
> cassette tape, or whatever, is fully in accord with both the letter
> and the spirit of the law.
>
>    (I'll refrain from inveighing against producers [as distinct from
> authors] of music, video, cinema, &c. &c., for trying to subvert both.
> If you'd like me to, just ask.  :-)
>
>
> --
>
> 			Best wishes,
>
> 				Max Hyre
>
> 				[Note the lack of ``JD''.]
>
> --
>
>                          Best wishes,
>
>                                   Max Hyre
>
>
> > -----Original Message-----
> > From: Rosalind Tedford [mailto:tedforrl@xxxxxxx]
> > Sent: Tuesday, December 03, 2002 9:18 AM
> > To: digital-copyright@xxxxxxxxxxxxxx
> > Subject: Question About Music Copyright
> >
> 	[snip]
> >
> > I have students arguing with me all the time that if they own the CD,
> > it's legal for them to make MP3s or make a second copy of the CD for
> > personal use. I know this is not the case, but if anyone has a site
> > (or handout) that explains why, I'd love to see it!!
> >
> 	[snip]
>
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