CD vs Computer playback on DirectStream

Elk said

There is no exception for duplicating copyright material for your own personal use. However, the industry has stated it has no objection and will not prosecute such infringement. It is also absolutely illegal to rip your CDs and sell or give away the originals to another. You own one copy, not two or more.

Additionally, the Digital Millennium Copyright Act criminalizes the production of technology which defeats DRM.


Mostly true but you’re ignoring the Fair Use Doctrine and overstating the generosity of “the industry”. Copying for personal, noncommercial use is generally legally permissible (apart from the DMCA, which only applies to copy-protected material, including SACD discs). The recording industry won’t sue people who make backup copies or rip their CDs for their own personal use because they would very likely lose. We beat this issue to death some time ago at http://www.psaudio.com/forum/general-discussions-and-miscellaneous-ramblings/digital-copying/page-2/

No, I am not ignoring Fair Use. But I am not aware of any case law or other authority providing that Fair Use includes making a backup copy. While not exclusive, the statute does not enumerate backup copies as an exemplar permissive use.

The DMCA provides an explicit exception for those repairing computers to make a temporary backup as part of this work.

I am not aware of anything which provides an end user can make backup copies or multiple copies for personal use without infringing copyright, although I agree a Federal court might find this to be the case.

Can you cite to any authority that duplicating a CD for personal convenience is Fair Use? And no, referring to opinion pages of the EFF does not count. laugh

Elk said Can you cite to any authority that duplicating a CD for personal convenience is Fair Use? And no, referring to opinion pages of the EFF does not count. laugh
No and I'm not going to spend my time looking. As I said, this issue was beaten to death in the past. Can you cite any authority that it's not fair use? I assume not, even though you state the contrary position as established fact in your first post (and yet recognize a court might disagree in the second). The presumption in the cases (see the prior thread) is that if it is for noncommercial purposes, it is fair use unless the copyright holder can show meaningful damages. The loss of a potential sale of a second disc if the first becomes damaged is highly speculative at best. More relevant to people here is ripping CDs to hard drives. That is closely analogous to the time shifting (Betamax, which the Supreme Court found to be fair use even though people sometimes keep the tape) and media shifting (Napster--the company lost because it made ripped files it didn't own available to the general public, not because they were ripped from CD to mp3) cases discussed in the prior thread.

judge.jpg

Sidebar! We are WOOT…respect-047_gif

stevem2 said Can you cite any authority that it's not fair use?
No. And I do not need to. laugh

Fair Use is an exception and a defense to infringement. Until and unless there is a Federal court holding that to copy a CD is Fair Use it is infringement.

Fair Use is a defense and limitation on a copyright holder’s rights, the infringer has the burden of establishing Fair Use. Until this burden is met, and a court so holds, the act is infringement; it infringes the holder’s exclusive right of duplication.

To copy a CD is not transformative act protected by Fair Use; it is not to comment upon, parody, criticize, etc. It is simply for the convenience of the owner of the CD.

There are plenty of cases finding infringement where the infringer did not make a profit and the copyright holder could not demonstrate it sustained substantive damages. L.A. Times v. Free Republic comes to mind. The L.A. Times Court noted that whether or not the plaintiff’s can show that they actually lost money from the infringement, the plaintiff is entitled, as the copyright owner, to control its protected material - even if it itself elects to give it away.

Accordingly, and this is my point, we cannot state making a copy of the contents of a CD is Fair Use. This is untrue; there is no such holding and it is an error to state otherwise. A court may find Fair Use, but no one can predict what the Federal courts will do. (We could make millions if we could.)

I readily acknowledge I find disturbing the audiophile’s general attitude that I can rip my CDs and those of my friends for my use, I can sell CDs I have ripped to my hard drive and still keep my copies, it is OK for my friend to rip my CDs and keep a copy, etc.

Ripping a CD for one’s own use is a privilege granted by the copyright holders and needs to be recognized as such. Perhaps this will help everyone recognize that they must stop there. But probably not and this is merely wishful thinking on my part.

Nobody here is arguing that it is legal or morally acceptable to rip someone else’s CDs or rip your own and then sell the CDs or give away copies. That’s a straw man and just confuses the issue.

I also never said ripping your own CDs WAS fair use. I said if the industry were to challenge that as a copyright infringement it would very likely lose based on the fair use doctrine. That is based on my reading of the rationale of the Betamax, Napster, Rio and other cases cited in the other thread. Predicting what the courts will hold based on relevant precedents is what lawyers do all the time. That’s the purpose of precedent in a common law system, as you well know. I could be wrong in my predictions. So could you.

As for the lack of a case on point, the 9th Circuit case in which the RIAA challenged ripping CDs to mp3’s to play them on a Rio (for the younger set, that was an early predecessor to the iPod) comes pretty darn close. See Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999) (‘Rio [a portable MP3 player] merely makes copies in order to render portable, or ‘space-shift,’ those files that already reside on a user’s hard drive. . . . Such copying is a paradigmatic noncommercial personal use.’) I also did not say making a profit was required for infringement. In fact, the Napster case (also 9th Circuit), which I discussed in the prior thread, found infringement even though Napster did not sell the mp3’s. But that was a far cry from ripping a CD you purchased to your own hard drive for the personal use of streaming the music to your DAC (or as a backup, for that matter). That’s just “space shifting,” which has been held to be fair use.

Finally, if a copyright holder were to sue for infringement and lose on fair use grounds, then it was fair use and not legally an infringement when it occurred, even in the absence of a preexisting case directly on point.

Sorry but I get defensive when someone tells me I’m doing something illegal (along with almost everyone else on this forum), even if nobody is likely to enforce that law.

I’m pondering what you two do for a living…1_gif

Will, if you haven’t figured out that I’m a lawyer you have not been paying attention. Who else would be so anal about this stuff? When it comes to intellectual property law, however, I’m faking it (I did read the cases I’ve mentioned but do not practice in the area). That should also be pretty obvious. My opinion is just my opinion. But I’m stubborn and sticking to it. (As my wife could tell you, I am seldom uncertain and frequently wrong.)

Oh my, and here I thought you were one of the white hat guys around here…confused

Love this copyright thread. If copying for personal use is a breach, then appears to me that horse has bolted as far as the record companies are concerned. There is no better example of copying than the combination of an iPod and iTunes. That combination has been with us for 14 years and surely limitations must now take effect. Clearly persistent “offender” like myself need not worry any longer.

It certainly is , or has been, a pretty well argued issue. Rules and laws are made for “current” needs and often against “perceived” potential future abuses but they do need to evolve or they risk becoming inequitable. Imagine Marvin Gaye’s estate suing Robin Thicke for infringing on the “ambiance” or “feeling” of a song. Really, how nuts are we getting here? Wanna guess who really makes all the money?

The horses are out of the barn so there needs to be new ways that the “industry”, and let’s not forget the authors and musicians, can have the incentives [ hopefully not only $$] necessary to create and perform music, art and literature for themselves and the enjoyment of others.

Music is such an important vehicle that virtually everyone responds to in their own ways and situations. A world without music and art would be… well… pretty dull.

I shudder sometimes when I see the price of concert tickets and think it is a shame that many of them are beyond affordable reach for many. More people should have the opportunity to experience live music of all genres.

Services like Tidal may, over time, be the biggest deterrent to “piracy” or as the guilty label it “file sharing”. Who needs a home library with all it involves when we can subscribe for much less $$ than lousy cable tv, to a library of millions at the tip of our fingers. That seems like the ultimate in “file sharing” and certainly opens up literally a world of artists and genres to the masses. I discover new artists every day with Tidal and a quick search of their names reveals virtually every album they ever made. Amazing.

Perhaps the “industry” needs to make some new deals with the talent they have often exploited over the years or the “talent” will find a way to do it without them. It is already happening.

"And on the Eighth day, the Lord made a backup copy."
Since I used italics, can I safely use that? sorry_gif

All true G. I just hope the talent, particularly those that don’t have the clout of a Taylor Swift, can find a way to get adequately compensated.

Business structures are rapidly changing across the board and world [to the dismay of many] and many models no longer match the current realities.

Being somewhat of a capitalist I get the part about the funding of inspiration and reward for achievement. I do have concerns, however, when it comes to permanent “ownership” of intellectual or physical “properties”. Where does one draw the line? And who gets to decide?. Certainly not Joe-Q-Citizen. Drugs, music, movies, concepts and inventions that are beneficial to the society should not be “permanent” properties? Perhaps, Like education and healthcare, the arts should be more supported by governments. Oops, those two are not doing so well lately either.

Reminds me of a little story of the good wolf and the bad wolf. Which one do you think will survive and thrive.
Well, the one you feed, of course.

Oh and just to re-justify the OT, computer audio, computer audio, computer audio yada yada yada.

John_k said If copying for personal use is a breach, then appears to me that horse has bolted as far as the record companies are concerned.
No, the RIAA has affirmatively stated it will not pursue its right to enforce is copyright interests against those who rip CDs for their own personal use. They have not lost their right to claim infringement at any time should they change their mind. However, this is unlikely to occur.
stevem2 said Sorry but I get defensive when someone tells me I'm doing something illegal (along with almost everyone else on this forum), even if nobody is likely to enforce that law.
Yes, a great of majority of music listeners are engaging in infringement. It is infringement until specifically addressed by a Federal Court and held otherwise. But, as i pointed out early on, this involves little risk as the majority of copyright holders have indicated they will not enforce their rights. Legality and likelihood of enforcement are two different things, of course. It is still illegal even of you do not get caught. laugh

Bottom line: You are much more likely to be caught and ticketed speeding then ripping a CD. Most of us speed with impunity. I suggest ripping for you own use with similar lack of concern as to its legality. But recognize this as a privilege, rather than an entitlement.

gordon said I do have concerns, however, when it comes to permanent "ownership" of intellectual or physical "properties". Where does one draw the line?
Which is why there are time limitations on intellectual property rights. For example, upon expiration of a patent the drug goes generic. There are similar limits on copyright.
stevem2 said Nobody here is arguing that it is legal or morally acceptable to rip someone else's CDs or rip your own and then sell the CDs or give away copies.
Not in this thread. But a number here have previously recommended ripping CDs, making a safety backup, and then selling the CDs.

I suspect some believe this is acceptable because they mistakenly believe they are entitled to rip a CD, believe that the resulting digital file is their property along with the CD, and it is therefore OK to sell one of the copies.

This is a great thread and thanks for participating, and to Elk for shepherding us through it.

There are the facts, most of us do what we want with physical media in the comfort and safety of our own homes, and there’s the rules, which few follow. Kind of like the mattress police, or the blue laws protectors.

My own two cents is that we need to find a way to support artists - and that desire of support should be divorced from file sharing restrictions. They are two different subjects, though they used to tied together. I believe new paradigms can arise that allow support of artists and our ability to rip media and share it however it makes sense.

Elk said Yes, a great of majority of music listeners are engaging in infringement. It is infringement until specifically addressed by a Federal Court and held otherwise. But, as i pointed out early on, this involves little risk as the majority of copyright holders have indicated they will not enforce their rights. Legality and likelihood of enforcement are two different things, of course. It is still illegal even of you do not get caught. laugh
I respectfully disagree, both as to the legal standard you apply and its application. Courts interpret the law, they do not make it. At least that's how it's supposed to work when it comes to statutory construction (common law is another matter). Something is not illegal until a court says it is legal. The courts have ruled in other cases that are sufficiently close to leave very little doubt that ripping CDs for your own personal use is legal under current law. For example, the music had to be ripped to hard drive before being copied to a Rio player. The 9th Circuit Court of Appeals found this "space shifting" to be legal (this was technically dicta as the copying to hard drive was not at issue but the assumption that this was legal is still noteworthy). The RIAA may like to give the impression that they allow ripping out of their well-known generosity but that doesn't make it so. The rights of copyright holders have never been absolute. Those rights are subject to statutory and equitable limitations, including "fair use." The copyright holders cannot just change their minds and start to enforce rights they never had, such as blocking fair use.

Interesting discussion.

to ELK

What is the time limitations on “ambiance and effect” or even score of a copyrighted song? Surely the Gaye/Thicke case would be beyond reasonable “time” or did the “jury” trial give it a different spin? [ or is it life + 70 years?]

I would think that any “resemblance” to the original could also be taken as a compliment to the timelessness of said resemblance rather than blatant plagiarism.

PAUL

Of course, the author and performer of a given work logically should be the first rewarded.
Fortunately the recording, marketing and distribution are now more within reach of the artists so this also puts pressure on the antiquated system where soul selling may have been a necessity for obtaining notoriety. New partnerships, with common goals, are forming and this is just the beginning. Woo-Hoo

During a Howard stern interview of foo fighters

it was obvious the money was made from nervana days and he does not do what he does just for money but pure art. When asked if he cared he said yes and no. It’s why he is his own label and records where he does. It’s shame it has come to this as we want better and better resolution where the artist just ants to not even make a living but be akcholoedged for there works. We all here pay and steal on some level and for those who feel there above the majority I laugh at your righteousness. It’s not that I do not feel bad for artists as I do. But it’s almost always way above them who makes the money. Most artist Make make money from tours or live events that is the new business model. I have lost count of the money I have paid in Sacds and downloads and as i live Ina few places the thought of me having to buy my music many times over even though we all have on various formats is just too much for me period. Where is the people who should be accountable for us in ways that we get defrauded on. How many here buy music Ina supposedly better format only to learn its bunk. A simple example I own 4 copies I bought of cat Stevens tea for the tiller man. How odd only the vinyl does not have a digital studded at 56 seconds of sad Lisa and this is just one example play it and see.

I no longer will buy any music from hd tracks as they are the worst of this kind of cheating even though cheeky is to be a god in downloads

people who barely earn money like blue coast of the like I feel sorry for

but alas my musical taste is as poor as my grammar and most of what is truly art of music I just do not like

A few days off this forum and some great commentaries from stevenm2, elk, pmcg and others. The RIAA can be as magnanimous as they want to be. Offering to reserve their position means nothing other then an acceptance on their part that they knew that they had a legal cause of action for copyright breaches but weren’t bothered to do something about it. Unfortunately for them, most countries have passed laws on statute of limitations and if 6 years from discovery is a general standard, then 6 years have passed. You cannot issue a general reservation of rights unless addressed to a specific person. They’ve missed you the boat and no more to say about. Perhaps Taylor Swift as a relative newbie might be able to bring such an action, as can any new kid on the block, but are they bothered.

Copying music for personal use is now legal if only because the plaintiff parties are now statute barred from bringing an action.

copying music the give to a third party infringes copyright and rightly so.

Copying music and then unilaterally distributing for profit is nothing other than theft and is a criminal action. Punitive fines please and why should we pay to keep them incarcerated.