Copying and Sharing Recorded Music (The Dos and Don'ts of Copyright Law)
By Laurence A. Borden   •   September, 2005 The introduction in 1982 of the compact disc ushered in the age of digital audio. Audiophiles now have lots of new digital toys and technologies at their disposal, including SACD, DVD-Audio, MP3 players, hard-drive–based CD players, and digital equalization and room correction, to name a few. Videophiles have similarly benefited from digital technology, with an armamentarium that includes high-definition television, DVD-Video, Blu-ray, HD DVD (the latter two still on the horizon), DLP, LCoS, and D-ILA, among others. Action-based films have also benefited from breathtaking, digitally enhanced special effects. Even those of us who still prefer LPs must acknowledge—reluctantly, perhaps—the incredible impact that digital has had on our hobby (footnote 1).

Unfortunately, digital technology has a dark side. The ability to make perfect digital copies of music, in conjunction with the ability (via the Internet) to share such copies with hundreds of thousands of people, has created a copyright-infringement nightmare of epic proportions for the recording industry (and, potentially, the film industry). The industry has responded by taking legal action against file-sharing programs (eg, Napster and Grokster), as well as against some of those individuals who download music without permission of the copyright holder. These actions, in combination with some recently enacted legislation, are likely to have a profound effect on our use of recorded music and movies. My goals in this article are twofold: to explain 1) the basics of copyright law as they apply to the copying of CDs and DVDs, and 2) why these laws are so critical to the future of audio and video technology.

What is a copyright?
We live in a physical world, which we learn about and experience through our senses. In contrast, copyrights inhabit a world that is only partly tangible; this world goes by the fancy term intellectual property. (The other three components of intellectual property are patents, trademarks, and trade secrets.) In general terms, copyrights cover what may be described as creative works, including: literary works; musical works (including lyrics); dramatic works; pictorial, graphic, and sculptural works; motion pictures; sound recordings; and architectural works. The purposes of copyrights constitute something of a delicate balancing act. On one hand, copyrights protect the artistic expression of ideas; on the other, they serve the public good by providing an incentive for artists to make their works public.

The U.S. Constitution provides Congress with the power to grant copyrights and patents, and the First U.S. Congress passed the first US copyright act in 1790. Copyright laws have changed considerably in the intervening centuries; the last major overhaul took place in 1976, with numerous smaller modifications occurring since then. The specific laws governing copyrights are contained in Title 17 of the U.S. code (footnote 2).

The rights provided to the holder of a copyright depend to some degree on the nature of the protected work. In the case of recorded music, the copyright holder has the exclusive right to make copies, to distribute copies (by sale, transfer of ownership, rental, etc.), and to perform the copyrighted work publicly (either in concert or by playing the recorded version on the radio). The operative word here is exclusive: That is, only the copyright holder, or those authorized by the copyright holder, have the right to copy, distribute, etc., the recorded music. Copying or distribution by anyone other than copyright holder, or those authorized by the copyright holder, constitutes an act of copyright infringement. Those who infringe a copyright are subject to civil and/or criminal penalties, depending on the nature of the infringement. (Certain exceptions are discussed below.)

From numerous Internet discussions in which I have participated, it is clear that many individuals resent being told what they can and cannot do with their CDs; their attitude seems to be, "It's my CD, and I'll do with it as I darn well please!" Interestingly, a CD does not actually belong to the individual who purchased it—at least not entirely so. It is useful to consider a CD (or DVD) as two separate entities, one tangible, the other intangible. The purchaser of a disc owns the physical disc itself (ie, the polypropylene, aluminum, etc.), and can do with it as she wishes: use it as a coaster, play Frisbee with it, or smash it in an act of political defiance (if such is her bent). However, the purchaser of the disc does not own its contents—the music or movie—which belongs instead to the copyright holder. (As a general rule, the purchaser of a creative work does not obtain rights to the copyright, except in those instances where there is a special provision granting transfer of those rights.) Thus, one entity owns the physical disc, another the contents. Because the owner of the disc does not own its contents, there are restrictions as to what he or she can do with those contents; copyright law establishes those restrictions. Like it or not, that's the law.

Fair use
If the exclusive rights held by copyright holders smell to you like a monopoly, you've got a good nose. Copyrights and patents are legal monopolies, granted by the government for finite periods of time (footnote 3). Although the rationale behind granting a monopoly was to encourage artists to share their creations with the public, it was recognized hundreds of years ago that absolute exclusivity might hinder free expression. For example, it would be difficult for a scholar to comment on a book if she were unable to quote a relevant passage. In response to this problem arose the notion of "fair use," the key element of which is that certain forms of copying of literary or musical works are not infringement, provided that the copying is "for purposes such as criticism, comment, news reporting, teaching...scholarship, or research." (footnote 4)

A few points about fair use should be noted. First, fair use is not granted automatically. Rather, someone must first claim infringement by another, and the alleged infringer would then claim the right of fair use. Ultimately, a federal court must decide whether the copy falls within the bounds of fair use. In reaching this decision, the Courts consider a number of factors, including 1) the purpose of the use, 2) the nature of the protected work, 3) the proportion of the work that is being copied, and 4) the effect of the use on the potential market for the copyrighted work. It bears repeating that fair use is intended to promote education, commentary, and the like; it is not intended to allow carte-blanche copying. The second point, which is relevant to the Digital Millennium Copyright Act (see below), is that while the courts themselves have at times spoken of fair-use "rights," fair use is not a right in the sense of the right to vote. Rather, fair use may better be thought of as a defense against charges of copyright infringement (footnote 5). However, some have argued that fair use is an essential right because it balances the monopoly afforded copyright holders.

Personal copies and the Audio Home Recording Act
For many years after passage of the Copyright Act of 1976, home taping of music was not deemed to have any special status "beyond the normal and reasonable limits of fair use" (footnote 6). In other words, the home taping of music recordings was entitled to fair-use exemption if its intended use was, for example, commentary or education. In 1992 Congress passed the Audio Home Recording Act (AHRA), which permits the manufacture and use of analog and digital recording devices, provided that they are not used for commercial purposes. Is this important? You bet your sweet CD burner it is! It is AHRA that allows us to make backup copies of CDs for our own use. For example, because of AHRA, it is not an act of copyright infringement to make a backup copy of a CD for use in your car or truck, or to protect the original from your kid's peanut-butter-and-jelly–encrusted fingers. However, as we'll see later on, some recent additions to the law may, in certain instances, effectively supersede AHRA.

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Footnote 1: I would like to acknowledge helpful discussions with many friends and colleagues, in particular John Dieffenbach, JD; Damin J. Toell, JD; and Gregory Silberman, JD.

Footnote 2: www.copyright.gov/title17.

Footnote 3: Based on legislation enacted in 1998, the duration of copyrights for works created by individual authors is equal to the life of the author plus 70 years. For works made for hire (ie, works created by employees or under contract, such as films and newspaper articles), the duration is 95 years.

Footnote 4: Ibid.

Footnote 5: 203 F.Sup.2d 1111.

Footnote 6: H.R. ReP.NO. 94-1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5669, 5679.