Once again, if you could change copyright law what would you do?
As it presently exists, you can make copies of recordings you own for your own use.
You cannot make copies for others.
What is unfair about this, if anything? If you find it unfair, archaic or otherwise objectionable what would you change? Why?
(This is entirely different from objecting to music industry artist contracts, etc.)
You are right. It is not easy to come up with a quick and equitable new model.
I suppose if I were to start it would be in the motivation and intention context.
Music is such a magical blessing whether playing or listening as well as sharing this enjoyment with friends. Getting together to jam or to listen [ even to equipment as we all sometimes do] is fantastic social therapy. Something we have much less of today given our "busy schedules"
This enjoyment sharing is part of the marketing as well as radio and music videos.
I do not believe that the drooping sales in CDs has much to do with file sharing [ case in point the French laws and results]. I just think there is less good stuff to buy and KEEP due to the diminishing quality of the content.
The problem stems from people not wanting to invest in collections of crappy short lived music.
This is not to say that there is no talent out there today. But nothing like there used to be.
People are buying mp3 tracks and less albums. This for one cuts $$ sales dramatically.
The majority of us are willing to pay a fair price for a good product that does not become obsolete after one season.
We used to buy our music at specialty stores where the owners knew our tastes and catered to customers. Now it is on line or Walmart type marketers and everyone pushing the same “hot” poo poo.
I didn’t promise a solution, just a start as it’s late.
Basically they can’t solve it either by spanking the back end when it is the front end that is causing the problems.
Peace.
ELK, not be beat a dead horse and just to be clear, my only real disagreement with your statements was regarding whether making a back-up (or, more relevant to this group, ripping to hard drive) of a legitimally purchased CD is a copyright violation. You continue to refer to it as such even though you say the RIAA does not find it “objectionable” and “they will not pursue this copyright violation.” My point is that back-up copies (and rips to hard drives) should be within the Fair Use doctrine and therefore not a violation of copyright to begin with. People on this forum should not be given the impression that ripping their discs to hard drive violates copyright law, whether or not the RIAA will come after them. The RIAA does not find this “objectionable” and won’t “pursue it” because it is not illegal, not because they’re nice guys.
stevem2 said: My point is that back-up copies (and rips to hard drives) should be within the Fair Use doctrine and therefore not a violation of copyright to begin with.
I will provide a brief response. Don't tempt me to provide the long reply. :)
To start, the courts have repeatedly recognized the ease of copying digital media, by its very nature, threatens to undermine the copyright holder’s ability to maintain exclusive control over protected property - a fundamental right of copyright.
Very briefly, and without citing caselaw 17 U.S.C. § 107 provides:
"The fair use of a copyrighted work . . .for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
As we can see, the purpose of Fair Use is to ensure that the rights of authors and artists are balanced with the interest of the public in the free flow of information. Thus, the enumerated examples all point to a beneficial use of value to the public, not mere convenience or the desire to save money by not purchasing another commercial copy.
The statute goes on to provide the factors to be considered by the Court:
"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work."
Fair use is limited to useful or beneficial public purposes with minimal impact on the market for the work. There is nothing beneficial to the greater public in making a personal copy.
So, let's apply the factors to making a personal copy for a server or MP3 player:
1) While the use is non-commercial, it is not for educational purposes or research, nor does it provide any other public benefit
2) The works are purely creative (creative works are afforded greater protection than factual compilations), unique, are entertainment only, not information of benefit to the public at large, sold for profit for which there is a ready market
3) The entire work is copied, not just a small exemplar or illustrative excerpt. (The larger the portion copied, the greater the negative impact on the interests of the copyright owner, and the less likely that a taking will qualify as a fair use.)
4) The effect on the market is to deprive the copyright holder of an additional sale.
stevem2 said: The RIAA does not find this "objectionable" and won't "pursue it" because it is not illegal, not because they're nice guys.
Interesting theory, but no. The RIAA is well aware of its bad public perception and that the majority of people find such copying reasonable in concept. The RIAA is a smart enough group to compromise over something it can do little about and for which there is little benefit pursuing.
stevem2 said: My point is that back-up copies (and rips to hard drives) should be within the Fair Use doctrine and therefore not a violation of copyright to begin with.
Perhaps it "should be," but it is not.
Regardless, it matters not a whit as the copyright holders have made clear they will not pursue this infringement. Make personal use copies with impunity.
I think we’ll have to agree to disagree. :)>- But, if you can provide a cite to a case that is directly on point, I would love to read it. I freely admit that I have not done any real research other than skimming the Betamax case.
Elk said: Simple - know who recorded/mastered it, what label, reputable reviews, etc. I'm sure you already know this.
It's not that easy ;-) Remember two versions of Patricia Barber's album?
Reviews do help, indeed.
stevem2 said: . . . if you can provide a cite to a case that is directly on point, I would love to read it.
The courts have not addressed the issue directly. Betamax does not answer the question; the issue was not before the Court and to the extent it provides guidance it is dicta.
stevem2 said: I think we'll have to agree to disagree.
Why? Based on what? What information do you have that the law operates differently than as I have described?
I appreciate not liking the reality, but the statutory language and case law on similar issues is quite clear. One simply cannot force an end user's desire to own duplicates for his personal convenience into Fair Use.
What arguments do you have under the four factors of 17 U.S.C. § 107 to demonstrate there is a greater *public* benefit justifying the negative impact on the interests of the copyright owner?
All an end user can offer as justification is his interest in convenience and the desire to save money by not purchasing another commercial copy. This does nothing to establish an affirmative defense to infringement grounded in Fair Use. "I wanted to make a copy and therefore it is OK" is less than legally compelling.
Alekz said: It's not that easy Remember two versions of Patricia Barber's album?
Nice try, Alek, but this is a distinction without a difference.
You do not need to illegally download a copy of the album to know in advance the sound is excellent. Both versions sound superb and all reviews opine the sound is wonderful.
No one will pass an ABX attempting to establish they can even hear a difference.
Gordon said: I just think there is less good stuff to buy and KEEP due to the diminishing quality of the content.
This may well be true, although people are listening to more music than ever through portable players, streaming, etc. The interest in music is astronomical. Regardless, whether people want the product or not cannot, of course, be solved by modifying copyright law.
What I am interested in is what proposals people have to change the law to what they believe is fair to both the public and copyright holders. Many take broad shots at the existing law, but few make any effort to specifically identify an actual problem and then offer a solution.
As we know, we can make copies for personal use without fear of prosecution. This means you can do anything at all you want with a recording as long as you do not give it to anyone else.
You cannot make copies for others nor can you post copies on torrent sites. Seems pretty fair to me.
There certainly is a marketing argument that a copyright holder may realize higher sales by making freely shareable versions available - but this is a marketing decision. The owner should not be forced by the law to make his works available to anyone for free.
re the above - RIAA is just an organisation. They have opinions, but they don’t make legal judgments. ELK’s account of the legality of personal copies is correct. Its not something expressly permitted, but it is not expessly forbidden. The discussion of fair use is relevant to personal copying in the sense that provision 4 supports the view that personal copies are not detrimental to the market. Copies made for finanicial gain are obviously detrimental - even one copy made available for sale is illegal. But being illegal doesn’t mean it would be pursued - it is expensive to defend copyright. Therein lies the real problem, which is the steady, incremental erosion of copyright that underpins the business model. Peer-to-peer transfer is like having a tap dripping in your house over a very long time. The individual economic loss of each drop is tiny, but aggregated it is big. Where the industry has failed is to think of new ways of coping with the changes in the media, instead preferring to reassert a very conventional perspective on copyright. It’s like raising one’s voice in a losing argument.
ELK, I really didn’t want to keep dragging this out but if you insist…
First, if there is no case directly on point, it is a matter of interpreting the existing authorities, largely by analogy. The statute and the cases (at least what I have seen of them, including the RIAA capsule summaries) do not, in my view, provide a clear answer in this narrow context (personal back-ups and ripping to hard drive for streaming or back-up). Consequently, I believe reasonable minds can differ. There is no one on this board whose opinion I value more than yours. That does not mean I always agree with you and you have certainly expressed disgreement with me at times over the years.
As to my specific disagreements with your arguments, there are several. I cited the Betamax case not for the specific holding but for the type of analysis and the legal standards to be employed. The majority noted that the legislative history makes clear that the statutory Fair Use factors listed are illustrative, as you recognized in earlier posts, and that the statute needs to be interpreted in light of changes in technology, among other things. They held that there had to be a “sensitive balancing of interests” and reversed the Circuit Court (which found for the studios) in part because the lower court failed to"engage in any ‘equitable rule of reason’ analysis.“
As to the specific Section 107 factors, it is primarily the 1st and 4th where we differ. As to the first factor, the Betamax court stated (internal citations omitted):
”[Section 107"] identifies various factors that enable a court to apply an ‘equitable rule of reason’ analysis to particular claims of infringement. Although not conclusive, the first factor requires that ‘the commercial or nonprofit character of an activity’ be weighed in any fair use decision. If the Betamax were used to make copies for a commercial or profit-making purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court’s findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity."
The Court went on to state:
"Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated."
We are talking about a noncommercial use here–copying a disc for backup or to a hard drive (for back-up or streaming). Consequently, the use is presumed to be within Fair Use unless there is a showing of meaningful harm to the copyright holder.
That leads us to the fourth factor in Section 107, the effect on the market or value of the work (i.e., the amount of harm to the copyright holder). Here, I just disagree with your conclusion. As far as true back-ups are concerned, people would not generally buy back-up copies in advance unless they thought the disc would go out of print, which is not typical. I think the harm you assert is simply too speculative to meet the Court’s standard (as with the speculative harms asserted by the stuidos in the case). When it comes to ripping to hard drive, I think the “harm” is even more speculative. High resolution downloads are bought on the understanding that the music will likely be stored on hard drives to be streamed. Most CD content is not available for download so there is no option but to rip it if it is going to be streamed. I would argue that the ability to stream music ripped from legitimately purchased (and retained) CDs expands the market for the CDs and thus there is no harm. Quite the contrary. Have any content providers ever complained about music being ripped from legally purchased CDs, either for transfer to mp3 players or for streaming for use of the owner of the CD? I think not. Their complaint is with music that was acquired without being paid for. The labels that agreed to Apple’s original DRM plan even agreed that iTunes downloads could be transferred to, what, 5 computers owned by the same person?
You argue that the labels’ failure to take action against this kind of ripping (or backups) does not make it legal. True up to a point. I view it, however, as a recognition of the evolution of Fair Use in this context. As the legislative history and the Court made clear, Fair Use has to evolve over time to meet new circumstances and an “equitable rule of reason analysis” applied. Your interpretation would read “fair” out of “Fair Use.” That is just as wrong as arguing it’s legal if it seems fair to me.
As to the benefit to the public, do you really see less public benefit here that there was in the Betamax case for time shifting? The benefit there was just the ability to watch a program at a more convenient time. That’s hardly a great benefit to society as a whole, nor do I believe that to be required. I don’t think that benefit exceeds the benefit of being able to stream rather than having to stick with playing physical discs. In any event, the Court’s focus was much more on the harm to the copyright holder than on the benefit to the public. I don’t see the harm to the copyright holder that you do, especially when it comes to ripping to stream (your argument against physical backups is a bit stronger but I also think that fails due to harm being at best immaterial–I just don’t think backups of physical CDs are needed that often). And that also goes for situations where redbook quality downloads are available but the person already owns the CD and rips that to stream. It’s not just a question of personal convenience. The existence of the copy, whether physical or ripped, does not permit the owner to enjoy anything that he or she has not paid for in terms of the musical experience. Any harm to the copyright holder, in my judgment, is speculative and immaterial. (It’s worth bearing in mind that the studios ended up making tons of money off of VCR rentals, proving their fears to be unfounded.) Copying something you don’t own is a horse of a different feather entirely.
I think if you applied your standards to the Betamax facts the studios would have won. The dissenters in the case would probably agree with you and maybe the case would be decided differently today (Scalia does not believe legislative history has any value, for one thing). I have not Shepherdized the case other than to make sure it had not been overruled by a later Supreme Court case. (Are you aware of any more recent Supreme Court case that would change the analysis?) Regardless, I still believe that if anyone were to challenge making personal back-ups of, or ripping to hard drive (which is what is really of concerrn to this group), legitimately purchased music, they would likely lose on Fair Use grounds. That’s my personal legal opinion, BASED ON WHOLLY INADEQUATE RESEARCH AND SUBJECT MATTER EXPERTISE, and MAY WELL BE WRONG, of how the “equity balance” would likely come out. (And yes, I do admit to being a lawyer. As I said before, intellectual property is not my area but I do have over thirty years experience interpreting federal statutes (Title 26, specifically), regulations, cases and rulings on a daily basis, god help me, for what little that may be worth.) Again, I think this is a matter of interpretation, not black and white law, and reasonable minds may differ.
All the best,
Steve
…don’t get me started.
Attached files 
Elk said: No one will pass an ABX attempting to establish they can even hear a difference.
Probably not, indeed.
I thought he sad, “None shall pass!” 8-|
wglenn said: "None shall pass!"
"You shall not pass!!!" - wasn't it Gandalf who said that? ;) (Or was it "You cannot pass"?)
@wglenn Uh-oh… You know what happened last time you referenced Monty Python!
Good discussion. I’m enjoying both arguments. From a moral point of view I agree with Elk, but as a consumer, I want better access to high res music files. I want to sample the quality before I buy to ensure it meets my expectations.
I buy a subscription to Game of Thrones because I know it is a quality production. I could easily watch it via a torrent, but I don’t because I want to keep watching, and to do so, they need to get paid. Critical to that decision is a quality product available in an easy to access format that I could sample before purchasing.
stereophilus said: Critical to that decision is a quality product available in an easy to access format that I could sample before purchasing.
I would add "reasonable pricing" to the list. Generally CD's are way too overpriced.
stereophilus said: Critical to that decision is a quality product available in an easy to access format that I could sample before purchasing.
agreed - having the option to listen to snippets of music is OK but ultimately one should be able to 'return' digital material if it is NFG.
Wonderful post, Steve! Very thoughtful.
stevem2 said: The statute and the cases (at least what I have seen of them, including the RIAA capsule summaries) do not, in my view, provide a clear answer in this narrow context
Boy, this is certainly the case.
stevem2 said: You argue that the labels’ failure to take action against this kind of ripping (or backups) does not make it legal. True up to a point. I view it, however, as a recognition of the evolution of Fair Use in this context.
You may well be right.
I suspect it is more a recognition by the RIAA that the general populace believes transcoding is legal and the RIAA knows pursuing end users on this basis would have little practical value.
stevem2 said: As to the benefit to the public, do you really see less public benefit here that there was in the Betamax case for time shifting?
Nope.
I think it is hard to argue public benefit to time shifting or ripping to MP3 - it is solely a private benefit of convenience. stevem2 said: Are you aware of any more recent Supreme Court case that would change the analysis?
There is some guidance. For example, creative works are afforded greater protection than data compilations, greater protection for copying entire works (complete songs and/or CDs), etc. but these do not directly answer the question.
I like your thought that Betamax would be addressed differently today if before SCOTUS now. This is an interesting question. As a society we are really struggling with IP rights.
Title 26, huh? You certainly like a little light reading.
stereophilus said: I could easily watch it via a torrent, but I don't because I want to keep watching, and to do so, they need to get paid. Critical to that decision is a quality product available in an easy to access format that I could sample before purchasing.
This is a superb example. And kudos for supporting a production you enjoy.
stereophilus said: . . . as a consumer, I want better access to high res music files. I want to sample the quality before I buy to ensure it meets my expectations.
David said: . . . ultimately one should be able to 'return' digital material if it is NFG.
I completely agree. It would be great if there was a way to accomplish this. I think it would make both content providers and consumers very happy.
There does not appear to be a truly transparent copy protection scheme, plus nearly all of us want to copy to portable players and servers.
Unfortunately, we know many would abuse this right by copying and then returning the CD or file.
wglenn said: ...don't get me started.
There are times I am hopelessly culturally ignorant; I have no clue what this picture means.