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Elk
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Selling CDs after ripping

In the final article of the current(?) Stereophile, the columnist mentions that he's unwilling to follow the current common wisdom and sell his CDs after ripping them, because he likes the feeling of having them.

Disturbingly there is no mention of the legality and ethics of the situation.

I was similarly disturbed when the response to an earlier letter to the editor did not mention the ethics and legality of the practice (someone ripped and sold their CDs, and then their drive crashed - causing the letter writer substantial angst).

This practice is inarguably illegal. It is clear to me that this is also unethical - although I am certain there are many that would disagree - just as there are those that posit that P2P sharing is perfectly OK, "music should be free".

ethanwiner
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Re: Selling CDs after ripping

Agreed totally, and any angst was well-deserved I'd say.

--Ethan

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Re: Selling CDs after ripping

I was wondering the same thing myself actually,once ripped to a hard drive, you have no rights to sell the media. Other than the fact that accidential deletion is't that uncommon on hard drives, the fact is you can't record the Cds and sell them on. I was surprised the magazine didn't mention the illegality of it.

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Re: Selling CDs after ripping


Quote:
In the final article of the current(?) Stereophile, the columnist mentions that he's unwilling to follow the current common wisdom and sell his CDs after ripping them, because he likes the feeling of having them.

Disturbingly there is no mention of the legality and ethics of the situation.

It's an interesting situation. Although the RIAA has claimed otherwise, it is inarguable that ripping CDs you own to your computer is a legal activity. And so is selling CDs you have purchased a legal activity. So you have the paradox that combining 2 legal activities results in an illegal activity.


Quote:
I was similarly disturbed when the response to an earlier letter to the editor did not mention the ethics and legality of the practice (someone ripped and sold their CDs, and then their drive crashed - causing the letter writer substantial angst).

I try not to behave as my readers' and writers' parent. I believe in presenting things for my readers to make up their own minds about. On the illegality, see my essay at www.stereophile.com/asweseeit/1104awsi.

Personally, I believe you should hold on to your CDs purely from the viewpoint of practicability. Your hard drive fails, the originals are your backup of last resort. Or if, as many have done to judge by the howls of protest when I recently wrote about the failings of lossy compression -- see www.stereophile.com/features/308mp3cd -- you ripped everything as low-bit-rate MP3s, you can re-rip everything in FLAC or ALC if you still have the CDs.

John Atkinson
Editor, Stereophile

Elk
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Re: Selling CDs after ripping


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It's an interesting situation. Although the RIAA has claimed otherwise, it is inarguable that ripping CDs you own to your computer is a legal activity. And so is selling CDs you have purchased a legal activity. So you have the paradox that combining 2 legal activities results in an illegal activity.


I understand your analysis, but this is not how the law works. When one buy a CD you purchase a non-exclusive license to use the music contained on it. When you sell the CD itself you pass this license on to the buyer. You do not get to keep the license (your ripped copy) and sell the license to another. At this point you are stealing a license.

As an aside, there is no clear legal right to rip your CD to a computer. Copies for personal use/backup are not protected by the Fair Use provision of the Copyright Act. However, the RIAA has stated it will not pursue those that simply make a copy. It is past time for Congress to address this issue squarely.


Quote:
I try not to behave as my readers' and writers' parent. I believe in presenting things for my readers to make up their own minds about. On the illegality, see my essay at www.stereophile.com/asweseeit/1104awsi.


Very fair. I guess my gentle dismay surfaced because there was a response that offered parenting advice to back-up one's retained copies but no comment on the legality. I do appreciate however that any given response can cover only so much ground.


Quote:
Or if, as many have done to judge by the howls of protest when I recently wrote about the failings of lossy compression -- see www.stereophile.com/features/308mp3cd -- you ripped everything as low-bit-rate MP3s, you can re-rip everything in FLAC or ALC if you still have the CDs.


The responses to this straight forward article surprised me.

In the upcoming issue of Playback magazine there will be an article addressing compression and audibility. The author compares the output of the original versus the compressed version on a matched bit-for-bit basis to determine if there are measurable differences. The comparison reveals differences in both frequency and amplitude. Both the article and the responses should prove interesting.

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Re: Selling CDs after ripping


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As an aside, there is no clear legal right to rip your CD to a computer. Copies for personal use/backup are not protected by the Fair Use provision of the Copyright Act. However, the RIAA has stated it will not pursue those that simply make a copy. It is past time for Congress to address this issue squarely.

You have much more faith than I do in the US Congress' ability to address an issue where the rights of the consumer are in conflict with those of a major business.

So please tell me, exactly which consumers are going to line the pockets of our Congressional representatives in the same or greater manner than the lobbyists for the RIAA?

Don't you find it ironic that a group of thieves gets to pass laws about stealing?

On the issue of trying to protect digital content there is only one simple answer: bring back analog!!!

All joking aside, it's not that people are trying to be thieves but rather that the technology, i.e. digital media and the ability to copy and distribute the copies, is well ahead of the content providers' ability to secure the content and so things result in the untenable situation that we have today. It is the rapidly changing technology and not people who are driving this issue forward and only when the RIAA and it's members learn to make the technology work for them rather then against them will things start to settle down. Of course there's a good chance that because of these technological changes the existing media industry will collapse and a new and different media industry will emerge from the rumble. I find it really interesting to be able to witness first hand the changes that new technology brings about.

On a similar note, do you bring all your digital photos to your local photo store for printing or do you just print them yourself? In other words, digital cameras have basically killed off the film based photo business but no one seems to be crying about the passing of Fuji, Kodac and Agfa as they happily snap away with their digital cameras.

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Re: Selling CDs after ripping


Quote:
In the upcoming issue of Playback magazine there will be an article addressing compression and audibility. The author compares the output of the original versus the compressed version on a matched bit-for-bit basis to determine if there are measurable differences. The comparison reveals differences in both frequency and amplitude. Both the article and the responses should prove interesting.

I have done this with earlier lossy codecs and reported on the results in Stereophile, if I remember correctly. Listening to the difference file is very instructive, as you hear all manner of cyclical errors and noise modulations, as well as variable frequency content. Perhaps I should post some of these files in our website archives, for readers to listen to and learn what musical information is being discarded by the codec.

John Atkinson
Editor, Stereophile

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Re: Selling CDs after ripping

John, I'd like to hear those. Count one vote for "Yes, please post these files in the archives!"

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Re: Selling CDs after ripping

Honest questions:
1. If I record a CD onto a cassette tape (analog recording), for my personal use, that's "OK", right? It's fair use, and the price of cassette tape includes a royalty amount, that somehow gets distributed back to record companies and artists - correct?

2. If I record a CD onto a data CD-R (digital recording), using my computer, for personal use, is that technically OK? As far as I know, there is no royalty or fee in the price of the CD-R blanks that goes back to record company or artist.

3. If I record a CD onto my standalone CD recorder audio component (digital recording), which can accept only CD Music blanks, for personal use, is that OK, since (I think) the music CD-R blanks DO have a built in royalty?

4. If I record a CD onto my CD recorder, analog (i.e., recording the analog output of the CD player which is routed through preamp and then the CD recorder which digitizes the analog input, is that ok - I mean, does that have a different status than recording it digitally?

4a. If I do the same as #4, but I'm recording the audio from a DVD, is that "OK"?

P.S. - I guess that "OK" will incorporate the meaning of "not really legally OK but it is accepted/tolerated by RIAA, etc., for now....

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Re: Selling CDs after ripping


Quote:

Quote:
As an aside, there is no clear legal right to rip your CD to a computer. Copies for personal use/backup are not protected by the Fair Use provision of the Copyright Act. However, the RIAA has stated it will not pursue those that simply make a copy. It is past time for Congress to address this issue squarely.

You have much more faith than I do in the US Congress' ability to address an issue where the rights of the consumer are in conflict with those of a major business.


Whoa! Hold on their, Jazzfan.

I don't expect Congress to do anything than to clarify the law - one way or the other. The current state of ambiguity and general misunderstanding by the public as to what they can and cannot do should both be resolved.

And yes, I do have doubts as to whether Congress can be clear, but this is yet another issue.

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Re: Selling CDs after ripping


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I have done this with earlier lossy codecs and reported on the results in Stereophile, if I remember correctly.

It would be great if you would post the files.

I think it would also be instructive to directly compare the frequency spectra of corresponding parts of the two files.

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Re: Selling CDs after ripping


Quote:
1. If I record a CD onto a cassette tape (analog recording), for my personal use, that's "OK", right? It's fair use, and the price of cassette tape includes a royalty amount, that somehow gets distributed back to record companies and artists - correct?


Not legal, but "OK" in that the RIAA will not pursue - currently. (As an aside I have not heard that there are royalties on cassette tapes, but perhaps there is.)


Quote:
2. If I record a CD onto a data CD-R (digital recording), using my computer, for personal use, is that technically OK? As far as I know, there is no royalty or fee in the price of the CD-R blanks that goes back to record company or artist.


Not legal, but "OK".


Quote:
3. If I record a CD onto my standalone CD recorder audio component (digital recording), which can accept only CD Music blanks, for personal use, is that OK, since (I think) the music CD-R blanks DO have a built in royalty?


I am murky on this one without some research, but I believe this is both legal and OK because of the royalty.


Quote:
4. If I record a CD onto my CD recorder, analog (i.e., recording the analog output of the CD player which is routed through preamp and then the CD recorder which digitizes the analog input, is that ok - I mean, does that have a different status than recording it digitally?


Analog has the same status as digital. Thus, not legal but "OK".


Quote:
4a. If I do the same as #4, but I'm recording the audio from a DVD, is that "OK"?


Not legal, but probably "OK". Probably OK as I have not seen any official positions of the film industry.

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Re: Selling CDs after ripping

Understood - thank you, Elk.

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Re: Selling CDs after ripping

Hold on a minute. I'm a copyright lawyer, so let me take a moment to correct some misconceptions in this thread.


Quote:
I understand your analysis, but this is not how the law works. When one buy a CD you purchase a non-exclusive license to use the music contained on it. When you sell the CD itself you pass this license on to the buyer. You do not get to keep the license (your ripped copy) and sell the license to another. At this point you are stealing a license.

That's incorrect. When you purchase a CD (or book or LP), you receive no "license." You own it. This means you are entitled to do anything with it that does not intrude on the exclusive rights (reproduction, distribution, public performance or display, creating derivative works) of the copyright owner.

Under section 109 of the Copyright Act, you are entitled to resell or give away the CD, so long as it was "lawfully made," because the copyright owner's distribution rights do not extend beyond the "first sale."

So, first things first -- the act of selling a lawfully made CD, by itself, does not infringe copyright. No matter what you may have done with it.

The key question, then, is what about those copies you ripped to your hard drive?


Quote:
As an aside, there is no clear legal right to rip your CD to a computer.

That's correct. Emphasis on "clear."


Quote:
Copies for personal use/backup are not protected by the Fair Use provision of the Copyright Act.

That's wrong. There is considerable disagreement among copyright experts about whether fair use excuses personal use copying. But everyone would agree that much depends on the facts of the particular case. So, if you are engaged in "buy-rip-resell" as a regular practice, it may be harder to rely on fair use to excuse your copying than if you ripped your CDs in 2005, not intending to resell them, then sold them in 2010 when you ran out of space for them. Fair use requires a case-by-case analysis, so it's hard to generalize.


Quote:
However, the RIAA has stated it will not pursue those that simply make a copy. It is past time for Congress to address this issue squarely.

Correct. That, by itself, suggests that all the copies you've ripped to your hard drive may be "lawfully made" with the permission of the record industry. Here's what the record company's lawyer said to the Supreme Court about this: "The record companies, my clients, have said, for some time now, and it's been on their website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod."

So, if the original copy onto your computer was lawful, whether under fair use or by implicit or explicit permission of the recording industry, then I find it difficult to see how your selling of the original CDs (perhaps years later!), which is plainly itself legal under Section 109, could somehow retroactively make the earlier copying infringing.

But I'll admit that copyright experts have conflicting views on this (I've personally debated this question with some of the leading copyright lawyers in the nation). And it's anyone's guess how a court would respond in a particular case -- much would depend on what, exactly, the defendant did.

Setting aside the legal issues, I also disagree with Elk's assumption that reselling CDs after ripping them is unethical, at least in some circumstances. Imagine 10 years from now, when nearly everyone will have transitioned to computer-based copies of their entire music library. Is every person in America required to retain their inventory of CDs in their attics forever? What possible utility does that serve? Do we prefer that all CDs end up in the landfill? That's obviously precisely what the first sale doctrine was intended to avoid.

For my part, I'm keeping my CDs until I have lossless, redundant, backed-up copies on some future digital music system. I don't expect that will arrive in my house for a few more years. In the meantime, I agree with JA:


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I try not to behave as my readers' and writers' parent. I believe in presenting things for my readers to make up their own minds about.

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Re: Selling CDs after ripping

Helpful, and well explained, thank you.

Elk
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Re: Selling CDs after ripping

Hi, Fred!

I have read your articles in the past and appreciate your work with the EFF. It's great to have you here. (I hope you really are Fred).


Quote:
That's incorrect. When you purchase a CD (or book or LP), you receive no "license." You own it.


Yes, you own the physical CD. However you do not own the music contained on the CD.

Thus, you can sell the CD, give it away, toss it, shoot it as skeet. However, you don't not own the right to copy or distribute the music contained on the CD. These rights remain exclusively with the copyright holder.

We need to be careful to keep separate the concepts of

A) personal backups, and
b) ripping and keeping a copy and selling the CD to someone else.

As to A:


Quote:
There is considerable disagreement among copyright experts about whether fair use excuses personal use copying. But everyone would agree that much depends on the facts of the particular case.


There is some debate, but there is no established right in the case law that allows one to make personal backups or copies for personal use. However, I would be willing to posit/conclude that a personal backup copy of a music CD is legal.

Backup copies are not among the specifically enumerated allowed purposes set forth in

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Re: Selling CDs after ripping


Quote:
Hold on a minute. I'm a copyright lawyer, so let me take a moment to correct some misconceptions in this thread...

Thanks for the clarifications, Fred. And good to see you on our forum.


Quote:
For my part, I'm keeping my CDs until I have lossless, redundant, backed-up copies on some future digital music system. I don't expect that will arrive in my house for a few more years. In the meantime, I agree with JA:


Quote:
I try not to behave as my readers' and writers' parent. I believe in presenting things for my readers to make up their own minds about.

Amen to that sentiment. I keep my CDs after ripping, BTW. They are, after all, the backup of last resort!

John Atkinson
Editor, Stereophile

Elk
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Re: Selling CDs after ripping


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Thanks for the clarifications, Fred. And good to see you on our forum.


John, I recall that Stereophile has published/interviewed Fred in the past. Is this really him?

I hope so as he is indeed knowledgeable, thoughtful, and can add a great deal.

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Re: Selling CDs after ripping


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John, I recall that Stereophile has published/interviewed Fred in the past.

Fred has been a well-valued source for news items to do with copyright and DRM matters. He was also a guest at our HE2006 Show in Los Angeles -- see http://blog.stereophile.com/he2006/060306fvl/.


Quote:
Is this really him?

I have no reason to believe otherwise.


Quote:
I hope so as he is indeed knowledgeable, thoughtful, and can add a great deal.

Yes indeed.

John Atkinson
Editor, Stereophile

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Re: Selling CDs after ripping

All we know is one thing. The world is set to change and has changed with respects to these things.

Pointing it right back at the music industry, the world says one thing in unison, and I paraphrase:

"Good, Bad..it don't matter. I'm the Guy with the Internet".

And that's about all there is to it.

Unless they are going to attempt to attach an explosive device to the sides of our heads set to activate if one looks at or transfers a file of some sort..It's not going to work. They're going to have to find some other way than rabid attack and prosecution. The world is steam rolling right over the RIAA and all prosecution tied to it. Here's a note for and about your earlier heavy handed behaviour: We uniformly and across the board--hate your guts. Artists and public alike give you the same reply.

That's such an old school attack methodology (attempts at virulent prosecution) in the face of the new, that it will die at the gate, and never get out. It's like grabbing one man in a protest march of 1 million, and beating him to death in the stead of all the others.

I know I'm stating it in an odd fashion, but I'm sure you guys get the idea. I myself have no solution. But I know I'm not about to give up the freedom of the internet to save the fucking RIAA.

One of the big things that saves the music industry on my side of things is I never copy, I hate MP3's with a passion and I never use the net for music. Screw that. I have no time for garbage quality.

If the net began to give me common (regularly and wide choice) access to 96khz/24 bit files done properly, I might start to change my mind. I would still prefer 192/24 .

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Re: Selling CDs after ripping

Having given this a bit more thought:

The problem with Fred's analysis is that the RIAA's permission to rip a copy of a CD is predicated upon one's ownership of that CD. That is, ripping a CD is one of the benefits of ownership.

Once one sells the CD, the right to possess a ripped copy is also sold along with the physical CD.

Any "right" to rip a copy now belongs to the new owner of the CD, it does not remain with the first owner.

The solution to illegal copying that I like is the EFF's proposal of a blanket fee paid by those that download music. You pay, e.g., $5.00/month to download all that you would like. The fee is divided up proportionately among artists based upon the popularity of their music. (This is how bars, radio stations, etc. pay for the music that is performed at their establishment or is broadcast.)

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Re: Selling CDs after ripping

Oh my gosh---poverty in show business. Metallica couldn't buy make up, Madonna reduced to using last years cones, Micheal Jackson with no glove Britany couldn't buy panties....oh the humanity.
Sounds like a good plan to me. Better than a tax on raw media which would totally overlook downloads to hard drives.

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Re: Selling CDs after ripping


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Better than a tax on raw media which would totally overlook downloads to hard drives.


Agreed. Plus, charging only those that participate is fair.

While people are ripping and sharing files because it is free, I have some faith that if priced fairly the majority would voluntarily sign up and pay for their downloads.

I don't know what a fair price is however. Rhapsody offers a monthly fee of something like $15 for all the MP3s you want.

However, I don't know if the price is based on what the files are actually worth or whether the lowish price is a compromise between getting something or nothing out of the massive amount of music downloading taking place.

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Re: Selling CDs after ripping

dinosaurs always fight their change and/or elimination.

The same problems abound in the corporate, energy, military, general cultural/social, scientific, and political fields.

We can't save the world from it's energy and pollution woes, as the energy, corporate, political and military branches are fighting us tooth and nail, as their current paradigms that keep them at the top and comfortable cease to exist as they do now, so they won't allow themselves to be radically changed or eliminated. We could switch the entire world over to clean energy in less than 5 years, if these considerations could be dealt with effectively. It will require TREMENDOUS awareness and TREMENDOUS input from the worldwide public -- otherwise we are all screwed. Not likely to happen, is it? These groups will only allow a solution that keeps them squarely at the top.

The major problem is that the very vast, ie 99.99% of all quickly available and enactable energy systems which fundamentally work.....remove or nearly eliminate all their bases of power, and destroy their positions. They would rather you die, than fix the world, as they won't tolerate their own elimination or radical change.

For example, a stone cold hard fact is that the money spent in the middle east in the recent wars..if it was used for creating energy independence in the United States directly..the United States would now have a net positive economic state with a nearly totally eliminated deficit, and they would have 150% of their energy needs fulfilled....and be a net energy exporter and be the 1100% undisputed heavy weight technological industry machine on the planet, in almost every way you can imagine.

Think about that for a few seconds. That's what the 'old ways' have cost you. That's what the old stalwarts who control your economy and politics have cost you. People don't get to the top of those situations without a plan and the hardcore ability for foresight , so yes, they saw it coming..so you really have to think about what exactly went on and the reasons why.

Now the point:

I mention this, as this is the sort of situation that is allied against the issues surrounding the downloading on the net.

Old stalwarts refuse to change their tactics and methods..but they have to. The entire net is like a giant sieve, that all their efforts will fail against,as the RIAA wants what it wants..and it will not back down from it. And it WILL ally itself with all the other opponents of a free internet and a free society, long before it backs down from stealing a dollar from each and every one of your pockets..and that includes dollars stolen from the artists, via being a control mechanism.

To put it politely..the RIAA, as a group of people and as an organization, will always ally themselves with the 'bad guys', as this it the only way they can remotely hope to achieve what their one single goal is.

They are not an empathy and/or humanity driven organization.

Realize this.

They will always operate in a capitalist, non caring, non humanity oriented manner. This means they are actually against the fundamental reason for the existence of music itself.

If that does not tell you what any attempt at compromise to and with the RIAA will lead to..nothing will.

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Re: Selling CDs after ripping

Although this article pertains to software, I thought it would be of interest to those reading this thread.

http://arstechnica.com/news.ars/post/200...d-software.html

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Re: Selling CDs after ripping

This case, and the other cases implicating the First Sale affirmative defense to copyright infringement in the context of license agreements are indeed interesting.

In each of these cases the copyright owner, such as AutoCad, is arguing that you cannot sell the original CD of its product as you have only a license to use the product, and thus cannot sell the copy you legitimately bought. Thus the primary issue in these cases is whether the transfer of the CD was a sale or the transfer of a license.

These cases are easily distinguishable however from what we are discussing. In each of these cases the seller did not keep a copy of the software or music. The seller simply is putting a used legitimate pressing of the CD on the market.

Our situation is different in that the user wants to both:

1) keep a copy and
2) sell the original to another.

I am interested in again hearing from Fred. While his organization is strongly biased and is an advocacy group, he is articulate and well-versed in intellectual property law. I would like to know more as to how he concludes it is legal to both keep a copy and to sell the original.

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Re: Selling CDs after ripping

Just for any Australians on the forum -- our Copyright Act is absolutely unambiguous. You must keep the originals.

Jpc

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Re: Selling CDs after ripping

How do we know the seller didn't keep a copy? Because they said so? Seems to me the courts would want to take into account the fact that sometimes people lie, and address the issue being discussed here.

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Re: Selling CDs after ripping


Quote:
How do we know the seller didn't keep a copy? Because they said so? Seems to me the courts would want to take into account the fact that sometimes people lie, and address the issue being discussed here.


The "license" cases are based on a statement of facts that the seller is not keeping a copy.

In both circumstances the seller/defendant makes a living selling used goods. He is a middleman between the original owner and the ultimate buyer. It is therefore unlikely that the seller is keeping a copy of all CDs he is selling. (The original owner may have kept a copy - but he isn't the defendant in these cases.)

While at some point the courts may end up addressing the point we are discussing, it would be much better for Congress to make explicit in the Copyright Act whether Fair Use includes making a backup copy of a CD and whether ripping a copy to a computer is acceptable.

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Re: Selling CDs after ripping

Yes, Elk, I'm the Fred von Lohmann that works at EFF. I point out, however, that my posts here are entirely in my personal capacity, not as a representative of EFF or anyone else.

I don't have much to add to my original post on this thread. If you own a lawfully made CD, you are entitled to resell it under the first sale doctrine, spelled out in section 109 of the Copyright Act. So, when you resell as CD, whether you've made and kept copies of it somewhere else or not, the act of reselling it (or giving it away) does not infringe copyright.

The harder questions relate to the copies ripped on your computer. As detailed in my previous post, it's my view that making personal-use copies of CDs you've purchased is noninfringing because it is both excused by the fair use doctrine and authorized by the recording industry.

But, in any event, either the copies you've ripped are infringing, or they are not.

If they are not, then I don't see how the act of selling the original CDs at some later date can possibly result in any infringement. Selling the original CDs does not implicate any exclusive right -- you're not making any *more* copies. If the initial copies are infringing from the outset, then obviously selling the original CDs doesn't make it any "more" infringing.

So I've never understood, from the perspective of copyright law, how you could logically maintain the middle position -- that the ripped copies are noninfringing, but only so long as you keep the CDs. From a copyright law POV, that's a profoundly odd thing to say, since there are two distinct events -- a copy (either infringing or not) and a distribution (definitely not infringing per first sale).

In other words, I don't see how a copy that was noninfringing on Day 1 could somehow be transformed into an infringement on Day 730 by a separate, noninfringing act (i.e., reselling the CD 2 years on).

But, as I mentioned, I'll admit that this issue ties copyright experts up in knots.

Elk
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Re: Selling CDs after ripping


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Yes, Elk, I'm the Fred von Lohmann that works at EFF.


Cool!

I asked only because so often others spoof a known expert in a field. It's great to have you here.


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I point out, however, that my posts here are entirely in my personal capacity, not as a representative of EFF or anyone else.


Very fair.


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If you own a lawfully made CD, you are entitled to resell it under the first sale doctrine, spelled out in section 109 of the Copyright Act.


No question.


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...it's my view that making personal-use copies of CDs you've purchased is noninfringing because it is both excused by the fair use doctrine and authorized by the recording industry.


Agreed.

However, both Fair Use and the RIAA's position are predicated on contemporary ownership of the CD. Yes?

This is consistent with the fourth factor of

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Re: Selling CDs after ripping


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The right to posses the copy must additionally be conditioned upon continued possession.

That's the problem in your reasoning, from a strictly copyright law POV. "Possession" of a copy is not, and can never be, infringing by itself, since "possession" is not one of the exclusive rights granted to copyright owners. So if it was noninfringing when you made the copy, and it was not infringing to sell the CD, I don't see how copyright law supports this notion of "conditional possession." That's just not a concept that can be squared with Section 106 of the Copyright Act (the exclusive rights).

Of course, I understand your argument to be that the contrary result would appear to permit things that might strike some people as absurd. But you may not need "conditional possession" to handle some of those cases. For example, in your "CD swapping club" hypothetical, I suspect that a court would find that the initial copying would fail under the fair use test, making the initial copies infringing from the outset -- no need to resort to a "conditional possession" concept. (I'll note that LaLa.com offers CD swapping similar to what you describe. Interestingly, it appears that most members prefer to keep the CDs, rather than repetitively rip and swap.)

Perhaps more importantly, the mere possibility that the literal language of the Copyright Act could yield absurd results is nothing new. Let me assure you, that happens all the time in copyright law. The guide is not what "comports with common sense," but rather what the statute says. The Copyright Act is like the tax code that way.

In any event, I think it is highly unlikely that a case will ever be brought to test this question. So, like so many other questions in copyright (is archiving movies on your TiVo legal? is keeping a copy of your father's CD when you go to college legal?), this one is likely to remain unanswered.

Elk
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Re: Selling CDs after ripping


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The right to posses the copy must additionally be conditioned upon continued possession.

That's the problem in your reasoning, from a strictly copyright law POV. "Possession" of a copy is not, and can never be, infringing by itself, since "possession" is not one of the exclusive rights granted to copyright owners.


Good point.

I failed to distinguish between the RIAA's statement and an analysis under the Act.

1) Don't you suspect that the RIAA's position that it is OK to make a copy as long as you own the CD and keep it?

2) Then we turn to Fair Use.

Fair Use is premised in balancing the rights of the copyright owner and reasonable public access for limited purposes. Thus, the included exceptions for research, education and review - with factors including the amount of the work copied and whether the copying affects market value.

I don't think anyone would argue that it is acceptable under the Act to borrow a copy of the CD from the library to copy and use. You have the CD in your paw, but you do not own it.

Does not a Fair Use analysis similarly fail to support wholesale coping when a complete copy is made for entirely "selfish" purposes, followed by a sale of the CD? You have copied the entire CD and your sale to another affects the market value, and your copying was not for the purpose of "societal benefit" such as education and research. What makes this different the copying the CD from the library?


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So if it was noninfringing when you made the copy,

This is part of my concern. Do we know that it is not infringement to copy a CD for personal use? If it is OK, is it OK because one owns the CD? If ownership does not matter, what does? (This is tricky as Fair Use is not predicated on ownership).


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For example, in your "CD swapping club" hypothetical, I suspect that a court would find that the initial copying would fail under the fair use test, making the initial copies infringing from the outset . . .


On what basis?

How is this different than our situation when one person makes a copy and then sells the CD to another?

If the person in the club made the copy lawfully owned the CD at the time the copy was made, how is there infringement? When does the infringement occur?


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Perhaps more importantly, the mere possibility that the literal language of the Copyright Act could yield absurd results is nothing new.


Very true. The courts can only interpret the Act, applying it to the facts before it. It is up to Congress to address the resulting anomalies.


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is archiving movies on your TiVo legal?


I always wondered what the court would do if asked do determine how long one can wait to watch a movie that has been "time-shifted". Also, can you watch it more than once?

Thanks again for helping me think this through.

By the way, have you written on this elsewhere? Do you know of anyone else who has rigorously analyzed this issue?

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Re: Selling CDs after ripping

To help out, maybe, I'll outline my quick understanding of the canadian version of the copyright law.

Items in your car, are covered under your house insurance. This means you can use 1000 copies of your originally purchased 'catcher in the rye' in YOUR personally owned (leased, whatever, ie the extension of your domicile) vehicle.

As well, 1000 copies of your personally owned 'catcher in the rye', in your house. Anyone on your house may use it. Same for your cottage, as part of your 'HOUSEHOLD'. The 'rub' point, where the copyright law in Canada defines 'personal use'.

However, it ends there.

Now, the whole USED issue, is not so clear, and is muddied like it is the US.

http://www.cb-cda.gc.ca/news/c19992000fs-e.html

One may ask why I would bother, when the topic is the US issues at hand. Oddly enough, precedents in the US can influence Canadian policy - and Canadian policy has also influenced developing US policies.

I think it says that possession of a USED copy in Canada also creates the right to make copies. But it is ambiguous regarding release/destruction of copies when the original is sold.

Elk
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Re: Selling CDs after ripping


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But it is ambiguous regarding release/destruction of copies when the original is sold.

This is indeed the difficult part.

Fair Use (partial copies for educational purposes, research, etc.) is premised on allowing access to copyrighted materials for the public good. You don't need to own it to make a partial copy for research.

On the other hand, if it is OK to copy an entire CD as to your server or to transcode to play on your iPod (an open question) - it is OK only because you own it.

Thus the issue: if you can copy a CD only when you own the CD, are you obligated to destroy the copy when you no longer own the CD?

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Rip it and return it?

A place near me sells CDs and DVDs with a special rip it and return it policy.  If you return it within 10 days they will give you some of the money back.  Is this legal?

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