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Author:  Abie
E-mail:  not available
Date:  10/3/2003 8:31:00 AM
Subject:  Music CD Copyright
Message:  Rabbi: I'm a fan of your web-site which is a consistent source of halakhic knowledge and erstwhile source of amusement. I was a bit concerned about some of the confusing discussions regarding file sharing on the Internet. I wrote the expository essay below for some friends to clear up some issues. I think it may be a bit too theoretical for your halakha lema'aseh website, but I send it to you to the extent you may use it as a resource. The essay only addresses American law. It is not intended to cover any of the dina malkhuta dina issues that may be raised. (I don't think halakha has a notion of intellectual property rights aside from the favorable notion of always attributing your sources. Please let me know if I am wrong.) Tizku leshanim rabot, Abie

The Copyright Law of Fine Fine Music

These are way exciting times for music fans, sharers and thiefs. No more waiting to demo the new Commodores 12" on American Bandstand; you can now download rare versions of songs you never heard of. At the same time there has been a steady rise in confusion about the ins and outs of copyright law. What follows is an extremely short primer on copyright and then applications of the law to specific music-related scenarios.   

I should note at the outset that I am not a copyright attorney, just an attorney interested in music. So don't take the below as definitive or the result of expert advice. Also, the state of the game is in constant flux, so all of this may be outdated in the near future. (All terms in quotes are legal terms with specific definitions codified in the United States Code, or "USC." Cites to the USC are given with the volume first and the number of the section second.)

A. Copyright law.

Much of the static surrounds the definition and purpose of copyright. What follows is a theoretical introduction to copyright law.

When an "author" creates an "original work of authoriship" the Copyright Act of 1976 vests him or her with certain exclusive rights.

The crux of copyright ownership is the exclusive right to reproduce a copyrighted work in copies or "phonorecords." See 17 USC 106(1). You are not, for instance, permitted to loop a Rolling Stones track in the background of your song without their prior written consent. Just ask The Verve.

The Copyright Act also grants an exclusive right to distribute the copyrighted work. See 17 USC 106(3). If Disc-O-Rama happens upon a caseload of the latest Beyonce that "fell off the truck" and sold it in their store, they would be violating this right (in addition to any laws against theft). This right to distribute is often implicated in tandem with the right of reproduction. For instance, the vendors selling bootleg CDs on Canal Street would be violating both provisions.

The Copyright Act grants other exclusive rights, but if you think about just these two rights, it seems pretty onerous. According to these two exclusive rights, you cannot even make a back-up copy of a CD for yourself or convert your CD into MP3 format so you can get jiggy with your iPod. Copyright law, however, is limited by the Constitution and the Copyright Act itself.

The Constitution. Article I, Section 8, Clause 8 of the Constitution grants Congress the authority to create laws "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Copyright, then, is _not_ the wholesale grant of exclusive rights. It is _not_ identical to a property right in an object. Congress only has the authority to grant copyright if and only to the extent that it "promotes the progress of science and arts" i.e., that it creates an incentive to artists to create more works. If Congress over-protected the artists beyond that shiur, the copyright statute would be unconsitutional and Congress would have to redraft the law.

There are a couple of reasons copyright is constitutionally limited. (1) Promoting arts and sciences. The constitutional authors recognized that another way the works are created is when the public can use previously made works.   A strict monopoly by the creator of a work can therefore actually hinder the creation of new works. This is also the reason the Consitution did not grant a perpetual copyright, but only one for "limited times." (2) Free speech. The more you grant someone a copyright, the less free speech the rest of us have.

The First Sale Doctrine. The copyright holder's right to distribute is limited by the first sale doctrine. See 17 USC 109(a). The first sale doctrine states that notwithstanding the provisions in section 106(3), the owner of a copyrighted work may sell a legally obtained copy of the work to whomever he or she pleases. Without this doctrine, there would be no Strand. (The reason behind this policy is the American tradition of not placing undue restrictions on the sale of objects.)

Fair Use. The exclusive right to reproduce a work also has a substantial limitation: fair use. Fair use is an affirmative defense to copyright infringement. If a plaintiff sues you for copying her song, if you prove that your copying was covered by fair use, you're innocent. There is, alas, no clear-cut test for fair use. Section 107 of the Copyright statute lists four factors, which judges must balance together on a case-by-case basis to decide if a particular use would be considered fair.

(i) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.

(ii) The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is informational rather than creative or expressive.

(iii) The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A use will be more likely to be fair where the amount taken is small or insignificant in proportion to the overall work and where the quality of the part taken is less significant.

(iv) The effect of the use upon the potential market for or value of the copyrighted work, including the effect on any derivative markets -- A use will be less likely to be fair where it replaces or supersedes the demand for the original work, or a foreseeable derivative product (a product based on the original).

[Since we're talking about copyright, I should note that I lifted the above four factors from www.eff.org. I should also note that this is not a copyright violation; it is most likely fair use.]

The policy reason behind fair use is to explicitly balance the incentive in granting the exclusive rights to authors with an interest in permitting the public to use the works without hassle. Again, the underlying theory states that the public, too, can promote the arts and sciences precisely by using these works. The most common example is a book review that quotes from the actual book. (Sampling may or may not be permitted under the parody doctrine; a related but separate method of limiting copyright.)

Therefore, copyright law can be stifling, but it is mitigated by other concerns. The bottom line is that copyright law is not strictly a property right comparable to your rights in objects. It is subject to specific limitations in the Copyright Act and the Constitution.

B. Sharing music.

Now that we've seen some of the basic issues in copyright law, below I run through some specific music-related scenarios.

1. Loaning a CD. Am I permitted to loan you my store-bought copy of AC/DC's Back in Black? There is no copying, so there is no problem with the exclusive right to reproduce the work. But I am distributing the CD, so am I transgressing the right to distribute? No. This is exactly what the right of first sale doctrine covers. Once I purchase a CD from a store I am free to sell it to a store and make some money on it (eve if it appreciates in value) or I may loan it out. Score.

2. Burning a CD. (a) Am I permitted to burn a legally-obtained CD as a back-up copy for myself? This is precisely the situation that fair use covers. The Supreme Court actually stated so in the 1984 Sony Betamax case. (b) However, am I permitted to burn a legally-obtained CD for a friend? This would be a violation of the owner's right to reproduce the work. Unlike loaning a CD, there are now two copies in existence and therefore the artist's right to reproduce is implicated.

3. Using P2P networks. (a) Are the users of these networks liable? Yes. If you post or download music on kazaa or Earthstation 5 you are infringing the copyright owner's right to reproduce. (b) Are the networks liable? That depends on the technology. Napster was found by the California district court to be liable because the songs went through a central mainframe. If Napster's computer's were shut off, then the users would not be able to share files. Kazaa and Earthstation 5 work on decentralized servers. Presumably, if these companies went out of business, people would still be able to share. The courts are currently litigating whether kazaa is contributorily infringing on copyrights. Earthstation 5 works on a similar technology, but is located in Jenin. See http://www.earthstation5.com/contact.html. A such, US law does not have direct jurisdiction over it, nor does US law have a copyright treaty with the Palestinian Authority.

I will note here that there is a judicial doctrine that if a new technology has "substantial non-infringing uses" then the makers are not liable for contributory copyright infringement. In other words, if relatively many people use Napster for trading files that have already been injected into the public domain, the courts should not shut down Napster (even if most of the people do use it for illegal purposes). The doctrine was used by the Supreme Court in the Sony v. Betamax case to find that VCR companies are not contributorily infringing copyrights of movie companies because most of their users were using VCRs to copy videos they had rented. This doctrine, however, is not very developed and not applied consistently. Noticeably, the California court was not persuaded in the Napster case of the merits of this argument.

Reply:  Thanks for the clarification. If anyone has definitive info to dispute this, I welcome your comments, but please no hypothetical, theoretical, or emotional stuff.

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