COPYRIGHT CONUNDRUM

June 2003
		Is downloading copyrighted music tantamount to stealing? Lawrence Lessig, an expert on Internet law from Stanford University's Law School, and Matt Oppenheim, senior vice president of business and legal affairs for the Recording Industry Association of America, answer your questions about this heated debate.

Online NewsHour Special Report: Copyrighting in the Digital Age Forum Introduction If I can go to my local library and check out and copy a CD for free, why can't I copy a digital CD from an online friend? Given that distributing a large number of xerox copies of a book without proper authorization is illegal, why would P2P be any different? Please explain how the DMCA will or will not impede further technological innovation and scientific research of new media devices? And, does this law violate my fair use rights as a consumer? Are the RIAA's "cease-and-desist" notices to alleged Internet pirates a violation of my personal property rights? How do musicians benefit from the RIAA's actions against alleged Internet 'pirates'? Would music companies consider developing an online service similar to that of Apple's iTunes or develop their own P2P networks? Does the U.S. constitution rely on patent and copyright laws as way to advance the arts and sciences, or to protect business interests? Is it illegal to download the MP3 version of a song that I have already purchased? Would outlawing anti-copyright devices in theory extend copyright terms for eternity?

Four viewer questions on consumer rights -- A. Bob McElrath from Madison, Wis. asks: Imagine two people are locked in two different rooms. Each has access to a computer with Internet access and radio with tape recorder. Neither person has ever purchased a CD, cassette, etc. After an hour you open the doors and both are listening to the same song. One recorded it off the radio, the other downloaded it off the Internet. Why is one permitted while the other (the Internet recording) is considered theft and criminal? Lawrence Lessig responds. Matt Oppenheim responds. B. Derek Fox from Pasadena, Calif. asks: If I own a music CD, is it legal for me to download the digitally compressed music for that CD (exact same version) via a peer-to-peer music service? What about downloading I track I already own from a P2P service to transfer it to an MP3 format? If not, isn't this a violation of my fair use rights as a consumer? Is it legal for me to make and distribute (not for personal profit), to my friends and non-commercially, "mix CDs" that contain compilations of music from my personal collection? If not, please reconcile explicitly with the language of the Audio Home Recording Act of 1992. Lawrence Lessig responds. Matt Oppenheim responds. C. Doug Dingus from Portland, Ore. asks: What are we buying when we buy entertainment media? Is it a license to view/listen to the product, or is it just a copy of the title that we have limited rights to? That is, do we own the license to view/listen to the content in any format -- or when we buy a CD, are we just purchasing the format of the content? Lawrence Lessig responds. Matt Oppenheim responds. D. An anonymous viewer asks: I own "John Denver's Greatest Hits Volume 2" on 8 track. Now, do I own a copy of the song for personal use, or do I just own the physical cartridge and have no rights to copy the song to another format (like a cassette, to listen to from my cassette player, or a CD or MP3.) But recently, I heard the RIAA is trying to make this practice illegal. To me this seems unreasonable since I already bought a copy of John Denver's Greatest Hits, and would like to listen to it on my cassette player, and especially since the 8-track player is becoming obsolete. The concept of making a copy for personal use of material I already bought isn't a criminal act or a violation of copyrights. The store was paid its money, took its share, the recording company got paid, John Denver got paid. I'm not stealing because they already sold me a copy. My own 8-track deck is not going to last much longer, but I still want to listen to these songs. Is this illegal, and, if so, isn't this a violation of my consumers' fair use rights? Lawrence Lessig responds below. Matt Oppenheim responds. Lawrence Lessig from Stanford Law School responds to the four questions: In my view, any sensible copyright regime would permit individuals the right to make as many personal copies of content they have purchased as they like. If they start giving those copies away in a significant way, then the rule may well be different. But copyright law should stand for the value of facilitating the easy spread and use of copyrighted content that someone has paid to access. Back to top Matt Oppenheim from the Recording Industry Association of America responds: (A) [Why is it legal to record a song from the radio while recording a song from the Internet is considered theft and criminal?] Way back in 1992, Congress drew a distinction between analog recording (on that tape recorder) and digital recording (the computer). In legislation enacted that year, they said that infringement actions cannot be filed against consumers who engage in copying using analog devices and certain types of digital devices on which royalties have been paid and which protect against serial copying of the copy. But regular copyright principles apply to any other form of copying. Thus, downloading a song from the Internet without the permission of the copyright owner is infringement and clearly illegal -- and a large number of courts have so held. Let's face it -- taping off the radio is time-consuming and quality is lousy. On the Internet however, it is extremely easy to download and the audio quality is near CD. Millions of people now mistakenly believe it is legal. The RIAA, among others, has been trying to educate people that downloading recordings from unauthorized services on the Internet is, in fact, illegal. (B) [If I own a music CD, is it legal for me to download the digitally compressed music for that CD (exact same version) via a peer-to-peer music service?] As a technical matter, it is illegal to download a recording from another that is not yours. As a practical matter, there is no reason to do it. It is easier these days to rip a recording from a CD than to download it. And, when you rip the CD, you do not open up your computer to all of the spyware and other viruses that are part and parcel of most illegal P2P services. No, [it is not legal to make and distribute (not for personal profit), to my friends and non-commercially, "mix CDs" that contain compilations of music from my personal collection?] Individuals are not permitted to make copies of their copyrighted recordings and distribute them to others without permission from the copyright owner. Whether or not you do it for free or for profit is irrelevant; the impact on the copyright owner is the same, they do not have the ability to sell their artistic work to others because they have received an unauthorized free copy. The Audio Home Recording Act permits individuals who are using special Digital Audio Recording Devices (such as Mini-Disc Players or Digital Audio Tape Recorders) to make limited copies for their "noncommercial" personal use. It does not permit individuals to make copies on other digital devices for distribution to friends or other people. (C) [What are we buying when we buy entertainment media?] When you buy a CD, you should feel free to consume the music. That means you should listen to that disc, and feel free to make a copy of that disc for your own use so that you can have a copy in your home and your office. You should feel free to copy it onto other formats, such as .mp3, so that you can listen to it on your computer. You should feel free to copy it to cassette. The only time you run into problems is if you begin to distribute your copies to others. (D) [Question from the owner and fan of a John Denver eight-track] Everything you described sounds fine to me. You should enjoy your John Denver 8 Track, and feel free to copy it to other media. The only issue would be if you decided you wanted to download somebody else's copy of John Denver's Greatest Hits (which was likely from a CD, and a much higher audio quality). Just as you would not go into a video store and steal a DVD copy of Star Wars and claim that you should be permitted to do that because you own the VHS version, you cannot download somebody else's copy of a recording. Back to top