Help Me Out Here: Copyright law (1 Viewer)

[Vince Maskeeper]

A person wants to create a "backup" copy of a Compact Disc to a hard drive, but then SELL the original CD. They plan to retain their copy of the audio from the disc in digital form, while selling the original physical disc to a new owner.

Someone outline the legality/illegality of this, and explain to them why...

Thanks

 

[Peter Apruzzese]

Vince,

There was a recent thread (past month or so) on Mike Knapp's Home Theater Talk that covered this very subject (and a few others). It was called "Moral Question..." or something like that.

 

[Ryan Wright]

A person wants to create a "backup" copy of a Compact Disc to a hard drive, but then SELL the original CD. They plan to retain their copy of the audio from the disc in digital form, while selling the original physical disc to a new owner.

This is copyright infringement, plain and simple. If you retain a copy, you are listening to music which you no longer own. It's no different than if you borrow a CD from a friend and make a copy.

 

[Gui A]

Vince, I thought that you never really own the music, you just own a license to play it in your house...and like Jeff said in the other thread, once you sell the original, you sell your rights to the license.

I think another way to put it is that the studios are the only ones that own the music, and the only ones who can make a profit from the music.

I'm not an expert, but I think that's how it goes.

 

[Vince Maskeeper]

That was my point, and I thought it to be pretty common knowledge...
Copying Cds (in any form, either CD-R or copying to a harddrive) and then selling the originals is illegal- it is piracy. You can, TECHNICALLY speaking, make backups of materials you retain the originals for under fair use.. but copying the music from the discs and sell the original media is not legal.
In a basic sense, this is no different that copying a cd you never purchased, the bottom line is there are now 2 copies in circulation for which the artist who created to work was only paid once.
Just wanted to make sure I hadn;t missed the mark on this, as I had a friendly debate with someone on this issue this evening. Granted their arguement started out in disbelief that it was against copyright law, and shifted to being about how they only wanted to keep a few songs they liked and the record companies don't offer that option; my point was that it is still illegal, no matter how much it makes sense to you personally.
-V
(I didn't notice he had already been lectured on this here:
http://www.hometheaterforum.com/htfo...threadid=67445)

 

[Thomas Newton]

It's no different than if you borrow a CD from a friend and make a copy.

Legally, it might be different, as in worse than copying a friend's CD.

When the Congress passed the AHRA, they may have meant to protect the practice of small-scale sharing between family and friends. The AHRA clearly prohibits lawsuits against people for non-commercial recording (although the RIAA continues to claim that non-SCMS devices like computers do not get the lawsuit protection).

From the description, it sounds like this guy is selling the CDs to strangers, just as soon as he can get the CDs out of shrinkwrap and the songs onto a hard disk. He doesn't have a bunch of old compilations or backups that would be hard to selectively cleanse. He's just found a creative replacement for Napster.

It's not clear if this qualifies as unauthorized commercial use. IF it does, there's a double whammy. Unauthorized commercial use is presumed infringing, and commercial infringement carries much stiffer penalties than non-commercial infringement.

 

[Yee-Ming]

I wonder if it's really unauthorized commericial use, seeing as he doesn't sell the copies, just the originals, but retains a (now illegal) copy for personal use.

also, just wondering, given that CDs are (allegedly) close to indestructable, or at least won't degrade significantly, can we really argue that making a copy is really for back-up purposes?

 

[Travis Olson]

also, just wondering, given that CDs are (allegedly) close to indestructable, or at least won't degrade significantly, can we really argue that making a copy is really for back-up purposes?

There is nothing wrong with making back-ups, it is your legal right. It's a law that the RIAA wishes would burn in hell, I'm sure. However, their are some people that back-up absolutely everything, be it music, movies or software. Personally, I back-up a lot of things and music is one of them. Mainly because I keep a lot of my CDs in my car and if they get stolen, which they have been, I have another copy on deck so I don't have to buy it again. But yeah, you can't buy a CD then copy it and sell the original, it's illegal, plain and simple.

 

[Larry Seno Jr.]

Anyone care to state which specific law they believe this breaks?

 

[Greg_Y]

Anyone care to state which specific law they believe this breaks?

Well I'm no lawyer, but I would think that you'd want to look at the Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code. Which is located here:
http://www.copyright.gov/title17/index.html
I imagine that it would violate the terms of Fair Use, which outline when you (i.e. the person who doesn't hold the copyright) are allowed to reproduce the work without permission of the person who does own the copyright.
I've been looking around the 'net for a few months now, on and off, trying to find good information on what is legal and what isn't. Even though I don't record my own music, I am very interested in what is legal and what isn't. For example,
1. Do I need permission or pay a fee if I publicly play someone else's song at a concert? (I think the answer is yes to the fee but I don't know why.)
2. Do I need permission to record my own version of someone else's song and put it on a CD and sell it? Obviously, I'd have to pay them but can they stop me from doing it, for any reason?
etc. etc.
I haven't found any good resources that answer these types of questions.

 

[Allan]

"1. Do I need permission or pay a fee if I publicly play someone else's song at a concert? (I think the answer is yes to the fee but I don't know why.)"

Yes, you have to pay. One of the things defined as infringement is if you have public performance of the copyrighted work. THerefore, performing a song at a concert would be infringement unless you pay a royalty.

"2. Do I need permission to record my own version of someone else's song and put it on a CD and sell it? Obviously, I'd have to pay them but can they stop me from doing it, for any reason?

etc. etc."

No permission needed. However, you must pay a license fee (like in the above.) No one can prevent you from doing this, it is a mandatory license (ie the copyright holder cannot say no).

 

[Greg_Y]

THerefore, performing a song at a concert would be infringement unless you pay a royalty.

Are these types of things covered by being part of certain 'societies' or groups, such as ASCAP? Because I can't imagine most bands / artists negotiate this on a song-by-song basis. "We were going to cover a Doors song tonight but didn't we're not sure what the royalties are, so we can't."
I'm also interested in knowing the differences between doing my own version of a song vs. using the original. For example, a compilation or soundtrack CD. If the originals are too expensive, it's common for a new version to be recorded by a different artist. I guess this has something to do with mechanical rights vs. publishing rights?
Maybe I should have been a lawyer. This stuff fascinates me.

 

[Zen Butler]

I thought I remember there being a "no-guilt" copying thing a way back. I think I actually sent either $1 or $2 to some band because I made a full copy, I think it was Pearl Jam. They actually had this "no-guilt" clause on the cd itself. To think I'm an ASCAP member, I should know more of this stuff.

 

[John_Bonner]

THerefore, performing a song at a concert would be infringement unless you pay a royalty.

So all those years I spent playing in cover bands (and making money) was I breaking the law, technically speaking?

Or was the club owner breaking the law by paying my band to perform copyrighted material?

 

[Vince Maskeeper]

A cover band is covered under the same agreement as any public play of music in a private establishment. Owners of clubs/bars are technically required to pay a small fee to Ascap and BMI (and SEASAC and SOCAN and blah blah) for playing of material in the establishment-- be it from CD or from live band. So if they have a DJ, a Jukebox or a live band- they are required to pay a fee to have the music played in a commercial setting.

Originally, I believe, clubs were required to keep playlists like Radio does for proper distribution of royalties. However, they don't any longer- so there is really no direct payment to artists based on what you cover live- rather a general payout based on popularity and statistical likelihood a particular song is being covered or played.

If you are a commercial band for hire playing private events for profit ( a wedding band), it is your requirement, legally, to be properly registered and paying dues to these publishing companies.

Now, if you decide to record the songs (or even make live recording available for free on MP3 websotes)- there is a whole new world of mechanical licensing through the Harry Fox Agency.

Someone above suggested you don't need permission to record a cover- and this is only partially true. The artist can choose to not grant rights to certain songs for whatever reason, like certain artists don't grant rights for their materials to be used in commercials.

You can try to use compulsory mechanical license provision of the copyright law (basicalloy says you pay a fee and you can cover whatever)- but I have seen people sue over this as well.

So, technically they might not need to speak to the artist directly to cover a song, the original artist can try to prevent a cover from happening, even if you choose to try to use compulsory mechanical license provision of the copyright law.

and to repeat this all over again, here's an article about this (by the way, few people realize my dayjob is the owner and webmaster of musicianassist.com)

 

[Brian Perry]

I think another way to put it is that the studios are the only ones that own the music, and the only ones who can make a profit from the music.

Not exactly; after all, it is perfectly legal for you to sell the original disc for a profit. (Assuming you haven't made copies.)

 

[Thomas Newton]

also, just wondering, given that CDs are (allegedly) close to indestructable, or at least won't degrade significantly, can we really argue that making a copy is really for back-up purposes?

Environments like cars are not exactly safe for CDs (due to theft risk, etc.).

Discs like "Traveling Wilburys, Volume 1" go out of print. (When I first heard about that, it was hard to believe it.) If your only copy gets stolen (as my only copy of a hard-to-find cover disc of Bob Dylan songs was), good luck replacing it.

Most importantly, the burden of proof should not be on the public to justify why copying one's own purchases for one's own use should be permitted. The Supreme Court ruled that unauthorized non-commercial use is presumed legal and Fair unless copyright holders can show reason for the courts to consider it otherwise. The studios couldn't show a reason for the Supreme Court to ban time-shifting (and VCRs), and the record companies can't show a reason for courts to ban space-shifting. "We want to ban it" isn't enough. They must make at least a somewhat plausible case for harm (as with Napster-style trading).

 

[Dan Lassiter]

OK, let's try another angle on this. I sell alot of CDs to a local store that pays cash for discs (a big necessity with all of the remastered CDs I buy). They resell them all for at least double what they pay for them. I do not believe they pay any artists royalties for this. Are these second hand music stores breaking any laws?

Dan

 

[Brian Perry]

They resell them all for at least double what they pay for them. I do not believe they pay any artists royalties for this. Are these second hand music stores breaking any laws?

No, just as GM or Ford do not receive any money when you sell your used car to someone.

 

[Thomas Newton]

OK, let's try another angle on this. I sell alot of CDs to a local store that pays cash for discs (a big necessity with all of the remastered CDs I buy). They resell them all for at least double what they pay for them. I do not believe they pay any artists royalties for this. Are these second hand music stores breaking any laws?

No. Copyright law includes the Doctrine of First Sale -- which says that once the copyright holder sells a copy of a work, the copyright holder loses the ability to control further distribution of THAT copy.

This doctrine preserves your right to dispose of your own private property (the CD). It is also what made the video rental business possible (Mom and Pop shops don't need the approval of Hollywood to rent videotapes, any more than Avis needs the approval of the automakers to rent cars).

The music and software industries got a special exception carved out of the First Sale Doctrine so that you cannot commercially rent music or software (other than video games) without the copyright holders' permission. That doesn't apply here.

Bottom line: it is legal for you to sell your own private property even when it is a CD.