TELECOM Digest OnLine - Sorted: Re: Who Owns the Music?

Re: Who Owns the Music?

Lee Hollaar (hollaar@antitrust.cs.utah.edu)
Sat, 3 Dec 2005 14:43:26 MST

In article <telecom24.546.6@telecom-digest.org>
gordonb.2asgo@burditt.org (Gordon Burditt) writes:

>> - if I buy a new CD, I am presumably entitled to record it for local
>> (computer/IPOD/backup/whatever) use. If I do that, am I (legally or
>> otherwise) prohibited from reselling or giving away the CD?

> Yes you are prohibited from reselling it or giving away the original,
> unless you include all your copies in the sale, or destroy them.

1. The presumption that you are entitled to record it for local
computer use isn't supported by the copyright statute. There are
special rules for non-commercial duplication of audio works (see 17
USC 100 1001 and 1008), but they are of limited scope because of some
particular definitions.

2. There is no general backup right in the copyright statutes. There
is one for "computer programs" in 17 USC 117, but again there is a
particular and narrow definition for computer programs. And you have
to be the owner of the copy of the computer program, not a licensee.

3. Any justification for the copying would have to be a "fair use"
argument under 17 USC 107. Since you are copying a creative work in
its entirety, you'd lose on factors (2) and (3), and since you are
somewhere between commercial and educational, factor (1) is probably
neutral.

That leaves factor (4) (effect on the potential market for the work)
having to be strongly in your favor. And since your keeping of a copy
after transferring the CD to another clearly displaces a sale, it's
hard to see how you would win on that factor.

4. The rule about destroying or transferring all copies when the
original is transferred comes from 17 USC 117, and is limited to
computer programs. But it is at least an indication of what should be
done if there is to be at least some illusion of a fair use.

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