Stop the Surveillance Bills!
A Retraction
It has come to my attention that noncommercial copying of digital music recordings may not be an infringement under Title 17 of the U.S. Code, "Copyrights." I apologize for any confusion I may have caused or any mistaken impression I may have given.
posted by Mitchell L. Silverman | 2:35 PM
19 Comments:
wouldn't file sharing then fall under the same protection if non-commercial?
You are allowed to make copies for your own entertainment. At least you used to be when buying a CD or tape. however you CANNOT make copies and distribute them to others for profit or for free.
that is true, but this lawyer has probably screwed his reputation from this post, which is why he is retracting it with the most believable statement possible, hoping people will leave him alone.
personally, I'd like to see him repost the letter and get the RIAA to do something
You can't distribute, for profit or for free. That's the law.
It is unlikely they would have recorded with a device that passes under the Audio Home Recording Act and the previous comments are accurate.
It is unlikely it could ever be prosecuted, but it is extremely likely they did break the law.
Give me a break. Making a copy (Or a million) of a CD and giving it/them away is not covered under fair use.
Who got to you?
It's important to note that he said "...noncommercial copying of digital music recordings may not be an infringement under Title 17 of the U.S. Code..."
He is not saying it is not, just that it may not be under certain circumstances that are spelled out in the Home Audio Recording Act (i.e. specific device class must be used to make recording on specific class of recording medium...with royalties being collected from the manufacturers of those devices/media...and certain technical restrictions enforced by the device). In my experience, most people who make CD compilations of copyrighted music do so using a PC, which is not included in that device class, so it is stil infringement and action can be sought against that individual.
An example of what is OK by the Home Audio Recording Act (AHRA) is using one of those stereo components that allow copying of CDs onto "music" CD-Rs (not normal CD-Rs) and disable "serial copying." It is not OK by the AHRA to use a PC and generic CD-Rs to achieve this same end.
A previous comment noted..
"You can't distribute, for profit or for free. That's the law."
This is incorrect. If the device & media are covered by the AHRA, you can copy and distribute noncommercially to your hearts content.
Another comment said...
"Give me a break. Making a copy (Or a million) of a CD and giving it/them away is not covered under fair use."
It may not be covered under fair use, but it can be covered under the AHRA.
People should familiarize themselves with this law before making blank statements that such copying is or isn't actionable...the details of how the copying is done (what device & medium used) does very much count.
Copyright Law of US Chapter 10:
http://www.copyright.gov/title17/92chap10.html
(see section 1008)
"No action may be brought under this title alleging infringement of copyright based on...the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
I'm not sure the RIAA cares about the "Fair Use" portion judging from all the lawsuits they've filed.
Shoot, if the source was from CD's and those CD's are copy-protected, then it can run afoul of the DMCA.
Now if they are from iTunes, there are some legal restrictions.
Though iTunes does not limit the number of times any one song legally purchased from them to be copied, they do limit the number of times the same playlist can be burned (made) into an audio CD (http://docs.info.apple.com/article.html?artnum=93360)
Plus the audio CD made from iTunes may not fall into the "First Sale" doctrine of copyright laws.
As far as the Audio Home Recording Act exemptions on personal/noncommercial (17 U.S.C. §§ 1008 Cornell Law or Library of Congress or US Copyright office) use is concerned, there may be some issues with that as well.
For one, if the blank CD media used was not specifically marked for audio usage as per the definitions for digital audio recording medium (17 U.S.C. §§ 1001 Cornell Law or Library of Congress or US Copyright office), it is not protected by noncommercial/personal use clause (17 U.S.C. §§ 1008), in the same way the definitions saved Diamond Multimedia (and other MP3 players) from the RIAA (RIAA v. Diamond Multimedia, 29 F. Supp. 2d 624 (C.D. Cal. 1998), the device in question was not a "digital recording device"; it reproduced files from computer hard drives which were specifically exempted from the SCMS and Royalty payments required by the AHRA and because the device could not directly record radio transmissions).
One can even argue that because computers (mp3 players, computer hard drives, most CDR burners and CD-R's unless it is specifically marketed and sold as an "audio" CDR, etc.) are exempted from the AHRA, the §§ 1008 protections don't apply.
There's even a New York Times article by David Gallagher, titled For the Mix Tape, A Digital Upgrade And Notoriety cites a quote from an RIAA official saying that "money did not have to be involved for copying to be illegal."
Although mixes on cassette tapes (analog mediums) may not have triggered the wrath of the RIAA in the past, the official said, "digital mixes have better sound quality." Given the popularity of CD burning for friends and relatives (including dad's for Father's Day and mom's for Mother's Day), the official went on to say "it would be naive of us to say that we should allow that type of activity."
Either way, I would like to see the Recording Industry Ass. of America be forced to sue; then everyone in America, including the President will be "angered" with them and everyone will see the Recording Industry Ass. of America's true colors.
Umm... Personal use and distribution are two different things. The Bush Twins distributed a copy. It wasn't for their personal use.
First of all
"It wasn't for their personal use."
I agree with that.
Second. The RIAA should first launch an investigation to ensure that a Personal computer wasn't used to create the CD. And then they should also ensure that all songs on the CD are owned by the twins. If not, they were illegally downloaded. In which case they should be tried worse then when they went after a family with no computer.
http://www.afterdawn.com/news/archive/7495.cfm
I mean, they should at least verify that they own all the songs.
Fred Williamson admitted to "dubbing" music for his son on Carson Daily's late night show several years ago. Sort of irked me at the time, now I realize that even the best game/movie/album will eventually end up in the $5 bin.....
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