Question concerning 'fair use'

Discussion in 'Music' started by robertLP, May 19, 2004.

  1. robertLP

    robertLP Stunt Coordinator

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    Don't know if this has been covered here, but...

    Suppose I've got a DVD with a song on it that I'd like to listen to in the car, or anywhere I don't have a DVD player. Given the copy protections on the disc, is it ethical and/or legal for me to download the exact same recording off of a p2p to burn it to a CD?

    I'd say yes, but curious as to others' thoughts on this.

    Rob
     
  2. Angelo.M

    Angelo.M Producer

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    I'd say "no."

    If you own an LP and make a cassette copy for your Walkman (how 1980's of me!)--that's fair use. If you burn a copy of a CD you own for your car--fair use. Rip that CD to your iPod--fair use. Photocopy an article from a journal to use in your reasearch--fair use.

    But because you own a song in a format that doesn't readily allow you to make a "fair use" copy, that doesn't give you the right to obtain (without purchase) another copy of the same song in a more usable format from another source.
     
  3. ElevSkyMovie

    ElevSkyMovie Supporting Actor

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    It would be fair use if the DMCA hadn't taken away that right. The DMCA says if the product has copy protection, it's against the law to circumvent the protection, even for fair use.

    There is a bill that is being brought to congress to amend the DMCA to allow fair use. Hopefully it will pass, or the Supreme Court will step in and fix things.
     
  4. BrianB

    BrianB Producer

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    IANAL, but I don't think the DMCA is what matters in this case, Kyle. It's not about copy protection - it's about me not "owning" the soundtrack to a DVD just because I bought the DVD. Buying a DVD doesn't give me the right to go copy whole songs from the soundtrack without purchasing the soundtrack.

    [added]
    I'm presuming by "DVD", the original poster means a DVD with a film on it, not a DVD-A.
     
  5. ElevSkyMovie

    ElevSkyMovie Supporting Actor

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    It sounds like to me Robert is talking about a dvd-audio disc or a dvd concert video. I'll let him clarify.

    The DMCA does away with fair use if the content is copy protected. If a disc isn't protected, you can copy it or take content from it and put it into another medium for your own use.

    If I buy a dvd-audio disc and then take the 16bit/48K track fromt the video folder and use that to create a cd I can use in the car, to me that is technically fair use. It's no different than copying a record to tape or cd to use in the car. I also NAL, but that's my opinion.
     
  6. Angelo.M

    Angelo.M Producer

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    As Brian wrote, this is an issue of ownership, not copy protection.

    You are allowed to make a fair use copy of your CD of The White Album to play on your car CD player. You are not allowed to download "Revolution 9" from a P2P network and burn it to a CD because you already happen to own it in another format. You are not allowed to download "New Frontier" from a P2P because you happen to own the DVD-A of The Nightfly. All of this is true without any regard to the copy-protection status of the media.
     
  7. ElevSkyMovie

    ElevSkyMovie Supporting Actor

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    Angelo,

    You're correct. I misread his original post.
     
  8. Angelo.M

    Angelo.M Producer

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    No worries. :wink:

    Rock on...

    NP: All Tomorrow's Parties
     
  9. robertLP

    robertLP Stunt Coordinator

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    Yes, I'm talking about a DVD-Video here. Specifically, the "8 Mile" DVD has a bonus song on in the form of a music video. It's not a part of the movie itself.

    Regardless of what the DMCA says, I shouldn't have to buy a DVD player for the car just to enjoy a song that I legitimately paid for.
     
  10. Stu Rosen

    Stu Rosen Second Unit

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    Well, IAAL, and no way could that be considered fair use. All you bought when you bought your DVD of 8 Mile is the right to use that DVD as intended by the owners of the content. Now there could be fair uses -- use of still frames for an educational analysis, for an example -- but you don't acquire to download a song from a P2P server.

    The Audio Home Recording Act permits you to make a copy of a digital recording that you already own from the copy that you already own -- NOT getting a copy of a song you own from another source.

    And while I feel your pain, ultimately, your use of what you buy is subject to the terms that the owner is willing to provide. Call it greed, or smart business sense, but that's why studios sell soundtracks and DVDs separately.
     
  11. Rob Gardiner

    Rob Gardiner Cinematographer

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    My understanding is that "format shifting" (i.e. converting from one format to another) is generally considered "fair use".

    From the Electronic Frontier Foundation:

     
  12. BrianB

    BrianB Producer

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    Which isn't quite what is being discussed, Rob. Re-read the poster's messages - "Is it legal for me to download a song from p2p that's featured as a music video on a DVD I own?"
     
  13. GlennH

    GlennH Cinematographer

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    So, under that "format shifting" interpretation from EFF, it *would* be fair use to rip the audio from a DVD you own to create a CD for your personal use.

    But if ripping that audio circumvents copy protections, is it a violation of DMCA?
     
  14. Wayne Bundrick

    Wayne Bundrick Cinematographer

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    Circumventing copy protection even in pursuit of fair use is still a violation of DMCA. That doesn't mean it's no longer fair use. They can't just add copy protection to take away your fair use rights.

    The DMCA says the Copyright Office is supposed to evaluate the DMCA's impact on fair use, and if they think it is a problem for a particular category of copyrighted material then the DMCA allows them to exempt the no-circumvention clause for that category. But don't count on the Copyright Office to take the public's side on anything.
     
  15. Stu Rosen

    Stu Rosen Second Unit

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    Let's be clear -- you don't have a fair use "right" -- what fair use is, is an exemption from copyright liability, if your use falls within the category of fair use.

    What that means is that a copyright owner can employ any means of copyright protection, and you do not have the "right" to employ fair uses.

    What Wayne says is right -- the DMCA bars circumvention of copyright protection. Fair use isn't a defense under the DMCA.

    For what it's worth, I am an attorney, and I work in this area.
     
  16. ElevSkyMovie

    ElevSkyMovie Supporting Actor

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    I don't know what the "8 mile" dvd is, I assume a movie. If it isn't copy protected (very small chance), then there are tools you can download from the web to pull the music video off and then pull the audio out. You can then burn a cd for you car.

    You could also hook the stereo out of you dvd player to your sound card and record the song that way.

    Or you could buy the soundtrack (assuming this song is on it). [​IMG]
     
  17. TomCW

    TomCW Second Unit

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    Coming to a traffic stop near you...
    "Ok sir, I need to see your license and registration. Is there anything in the car I need to know about, any weapons, drugs, ripped music?" [​IMG]

    Tom
     
  18. Rob Gardiner

    Rob Gardiner Cinematographer

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    Stu,

     
  19. Erik.Ha

    Erik.Ha Supporting Actor

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    I am also an entertainment attorney, and deal with copyright law all day long, and I agree with Stu 100%.

    The problem with is that it is operating in a vacuum. Fair use is a DEFENSE. Plain and simple. "Some lawyers" may argue it is a "right", but that will not prevent some "other lawyer" (like me or Stu for example) from filing a lawsuit against you. We have a place where lawyer's differing opinions on the status of the law is hashed out... Its called a COURTROOM, and we get paid big bucks to be in them. At the point you've been served with a lawsuit for copyright infringement, its already too late. The first hour of the lawyer's time who will argue to a jury that "fair use is a right," will run you about 200-500 bucks, depending an how good he is... Isn't it cheaper to spend $15.00 on a CD?

    The clearest statement of the law is "ONE CANNOT COPY ANY COPYRIGHTED MATERIAL WITHOUT THE OWNERS CONSENT."

    The "Fair Use" doctrine on the other hand is a CASE BY CASE determination, that a judge or jury must decide upon based on a very intricate 4 part test. The four tests are: 1. The purpose for the copying. (are you copying it so you can teach a group of physicians how to cure cancer, or to parody a political policy? or are you copying it so you don't have to pay 15 bucks to buy a CD? One gets more protection than the other, and everything in between is varying shades of grey) 2. The amount of material copied. (did you take one line from a 300 page book? or did you just rip-off the whole deal and put your name on it?) 3. What was the nature of the work copied? (was it a scientific thesis on the danger of cigarettes that was distributed for free? Or was it a music CD that was produced for the sole purpose of making money?- Hint- Making money gets more protection) 4. What effect would this copying have on the marketability of the original work? (The more damage, the less protection). The court applies the four tests to the facts of the case before it and reaches a conclusion. None of the tests is weighted more than the other, but the judge may weight them differently based upon the facts of the present case. In other words, ITS A COIN TOSS!

    People ask me all the time "is this a fair use, Is that a fair use". My answer always is "I DON'T KNOW." They say, "BUT YOU WENT TO LAW SCHOOL!!! WHY DON'T YOU KNOW???" Because NOBODY knows until a court decides that it is... But, I know enough to KNOW I DON'T KNOW... which is more than most people, who hear a legal term of art they don't REALLY understand, and decide they can not only interpret it, but can safely apply that interpretation without fear.

    Given the fact Im an attorney who works in the field, and getting hit for infringment would LITERALLY RUIN ME, I err on the side of caution, which is what I advise my clients (as well as everyone else) TO DO...

    My only exception to this is when I teach classes, which I do from time to time. In those cases I know that since I'm "teaching" I have a little bit more leway than the average joe, and will copy some materials, BUT... I NEVER copy entire articles, and I rarely let the students keep the materials. I collect them at the end of the class and use them only as a teaching aid, which I think has my ass safely covered, which is all I really care about anyway.

    Its like asking "will a jury find me guilty if a shoot somebody who just punched me?" BEATS ME! Could be self defense... Could be Murder... Depends on the jury you get, and your lawyer's ability to persuade them.
     
  20. Rob Gardiner

    Rob Gardiner Cinematographer

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    Erik,

    How does that work? I quote a reputable source that says, "Lawyers disagree about the conceptual nature of fair use" and provides support for that statement. Then you come along and assert, "Fair use is a DEFENSE. Plain and simple." The purpose of my quoting the EFF is to demonstrate that the issue is anything but plain and simple. In any case, I've wasted too many hours going around and around in circles arguing these issues in past threads, so if you have issue with anything I've quoted, please direct your complaints towards the EFF.


    RobertLP,

    Go to Radio Shack and buy a cable with a 1/8" stereo plug on one end and stereo RCA jacks on the other end. Run this cable from your DVD player to the input on your soundcard. Visit audacity.sourceforge.net and download Audacity (freeware audio tool). Capture your song and output to WAV. Burn this WAV onto a CD with your favorite burning software.

    The RIAA sues people who share songs on P2P networks, but to my knowledge they have never sued someone for format shifting one song that they've already bought for personal, non-commercial use.

    THE END.
     

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