Thursday, February 16, 2006

Ripping your own CDs to your iPod is NOT fair use???

This story (h/t to Scruffy Dan) needs to spread through the blogosphere like wildfire. This is perhaps even more disturbing than the whole Sony rootkit debacle and we need to make a stink about it now, before it goes any further.

And someone should email Steve Jobs about this. Maybe he won't care, because this would presumably send more people to the iTunes Music Store, but I'd imagine some people could be turned off of buying an iPod if it means they have to re-purchase their ENTIRE MUSIC COLLECTION!!! A prospect which would easily cost most people THOUSANDS of dollars.

Preach everyone!

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wonderdog said...

Not relevant to us, really. This is about the US. In Canada, it is considered fair dealing.

Dave said...

Canada's copyright laws DO allow copying for personal use though.

Lord Kitchener's Own said...

Well, it's relevent to us in the sense of living on the same planet as our U.S. friends.

And I'm glad people are confident in Canada's "copyright laws", such as they are. But most experts will tell you that "fair use" is MUCH better protected in the U.S. system than in the Canadian. And let's not forget that there is an entire INDUSTRY of people working on changing OUR laws and regulations to bring them "up-to-date", and commentators have pilloried their suggestions as an out in the open attack of "fair use", not to mention that the world's largest economy making decisions about how THEY'LL deal with "fair use" may just effect how WE decide to deal with it in the future (and I won't even mention a little thing called NAFTA...).

I wouldn't say of ANY issue, "oh, that's the U.S.... that doesn't effect us", that's lunacy. But especially so, imho, in this case.

Lord Kitchener's Own said...

Actually, I'm quite concerned that people think that in our "law" this is considered fair dealing. I'm not sure that's been spelled out at all.

Can one of you link me to a statute that says this is fair dealing, because I'm not aware of one.

I know at U of T (and most universities I believe), when libraries send articles for students (for personal study of course) from one library to another library at a different campus, they do scan the articles and send the articles electronically, TO THE OTHER LIBRARY. Then the receiving library PRINTS OUT the article for the student. Why don't they just send the electronic version directly to the student??? Because they don't want to get sued. Not an exact analogy, but I think both commentators here are a little to quick to assume things are so much different in the Great White North.

wonderdog said...
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wonderdog said...

There is no such thing as a statute spelling out fair dealing, Kitch.

It's established by precedent. In Canada, the precedent has been established to allow you to copy a work for strictly personal use when you've already paid for it once.

The example you use where a library is involved is obviously a different scenario. There is no third party involved when I make a copy for personal use. We're talking about my ripping a copy of my CD for my iPod, not my ripping a copy for a buddy's iPod.

Lord Kitchener's Own said...

I see your point exactly wonderdog, and the library analogy is not perfect, though I would argue that if fair use covers "private study" (which it is supposed to), you ought to be able to make any KIND of copy you want for private study, not just print, but also electronic. I know universities are afraid they'll get sued over this, even though in my opinion fair use should exempt copying for private study, no matter what FORMAT the copy takes (electronic, or print), so this is where the analogy is similar, in that people like the RIAA have a problem with the FORMAT (space-shifting and format-shifting) not just the existence of a copy. In the private study exemption, universities are not scared of being sued over the production of a copy, since they're clearly printing out the articles and giving them to students for their private study, which is clearly fair use, but they worry about the production of an ELECTRONIC copy, which they fear they will be sued over, and I think that's a pretty slippery slope, and exatly the type of thing the RIAA is arguing about here. If you can photocopy an article to study at how while you write an essay, why can't you SCAN an article to study at home while you write an essay? I would argue that you can, but no one's too keen to fight a lawsuit just to prove that I'm right. If fair use means anything in the 21st Century, you should be able to make any "type" of copy you need, but a lot of people don't think the law will be interpretted that way by the courts (though, again, I do). But private study, and private use are different exceptions of course, so the analogy is not perfect, though they both fall under "fair use" so I would think both exceptions should be treated pretty much the same.

Are you aware of any case law in this area? I COMPLETELY agree that the courts would rule that BOTH the scenarios I've outlined are covered by "fair use", but the problem has always been that no one has been willing to get sued over it to prove the point. I wish universities would push this more, and I know many professors who WANT their university to be sued so they can get this all settled once and for all (and I always assumed they felt that way because the case law is so shaky, and they want to force the issue). But, of course, university ADMINISTRATORS are less enthused about fighting costly lawsuits, and the bad press they might receive (though I think the publishers should be more worried about that than the institutions of higher learning). My understanding is that the case law is pretty contradictory, if not non-existent when it comes to modern ELECTRONIC copies, and major changes to U.S. interpretations of "fair use" won't make things LESS complicated.

Also, I don't discount that the government, and industry, have been actively pursuing copyright "reform", so even if there is case law, and it's not as contradictory as I've been led to believe, what if the statute law changes? And I think people will argue that if American companies get X, Y and Z protection, then Canadian companies should too (and again, there's probably a NAFTA complication).

I COMPLETELY agree that the courts would rule in favour of fair use here... that seems the only logical outcome. I'm just concerned that A) it stays that way, and no new statutes cloud the courts' view; and, B) no one need defend a lawsuit to PROVE I'm right on how the courts would rule.

I think the courts would uphold same-sex marriage too, were the current legislation changed by parliament, in fact, I'm sure of it. But I don't want to force a couple to fight that battle all the way back to the Supreme Court just to prove that. I'd rather nip it in the bud now, and draw a line in the sand, and I feel the same way about copyright.

wonderdog said...

Well, I would have to look up the specific precedents.

One thing: fair use does not provide a blanket exception for private study.

This is a misconception that seems to originate from people reading the law and trying to apply it by the letter to justify whatever copying they want to do.

The thing about fair use is that the use has to be fair. A number of tests apply and one is the proportion of the whole work that you copy. Copying an entire work is rarely fair use.

Elsewise, you could justify copying the entire contents of your local bookstore for "private study," and never again buy a book.

wonderdog said...

Sorry, Kitch, my mistake here.

This is not covered by the general "fair dealing" exceptions. Rather, it actually has its own exception in the Copyright Act:
Copyright Act
Copying for Private Use

Where no infringement of copyright

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer’s performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied

onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.


(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

(a) selling or renting out, or by way of trade exposing or offering for sale or rental;

(b) distributing, whether or not for the purpose of trade;

(c) communicating to the public by telecommunication; or

(d) performing, or causing to be performed, in public.

1997, c. 24, s. 50.

Lord Kitchener's Own said...

Well, that's good news! Thanks wonderdog... but I'm still worried.

As for your comment on "private study", you are right of course, the exemption is not absolute (less than 10% of a published work, or an entire chapter if it is less than 20% of the book, or an entire article from a newspaper or journal, or, or, or...). But the analogy I used of a journal article above is CLEARLY fair use, and I think students should be able to scan the article for private study, just as easily as if they photocopied the article for private study, and I'm telling you, people are scared of being sued for doing so (even though, to me, format is irrelevant... if it's private study, it's private study and that's fair use...).

Also, to my knowledge, the limitations spelled out above for the private study exemption aren't spelled out ANYWHERE in LAW. People are so scared of being sued (even, or especially, universities) that they enter into licensing and copyright agreements with groups such as "Access Copyright" (where the above limitations are from, NOT Canadian law), and this leads to a whole other problem. Because once you've entered into a licensing agreement, the company will argue that "fair use" no longer applies. You're bound now by the agreement you signed, even if courts would rule that what you did was "fair use" if you hadn't entered into the agreement. But people and institutioons feel compelled to enter these agreements, because they need certainty, and the law and the courts don't provide that, and everyone is scared of the lawsuits! If you want to know in black and white what "fair use" means, enter a licensing agreement. But once you enter a licensing agreement, it no longer matters what the courts say "fair use" means. But you can't get the courts to rule definitively if what you want to do is "fair use" unless you stay out of the agreements, do what you think it is your right to do, get sued, and then win. And you can imagine how many people would rather sign away some of their rights, rather than fight a lawsuit to determine their extent.

It's good to see the statute you refer to, but I would point out again that there is a huge push on to "reform" and "modernize" the copyright laws in Canada, and so far the proposals put forward have definitely NOT focused on the rights of the user. Copyright is SUPPOSED to protect the rights of creator AND consumer, but it's been moving more and more in one direction, at the expense of the other, and I'm worried that this trend will continue. Sadly, copyright is just not sexy, so we could wake up one day under a whole new set of ground rules without anyone having noticed what was going on! Companies don't like "fair use", and they'd love to get rid of it, so they chip away and chip away, and eventually it may be eroded completely. Legislatures tend to favour companies over consumers in these kind of cases, and while the courts would probably restore tha balance, these things only get to court when people get sued, and everyone's bending over backwards not to get sued, so it never get settled. And the line just keeps on moving.

Even if I wasn't concerned that Americans deserve the same rights and protections as us (which I am) I'd still be concerned that any moves down south to push the line, make it that much easier for people to push it up here. And don't fool yourself... people are pushing, and the only way to push back may one day be to defend a lawsuit. I hope someone decides to do it sooner, rather than later, but I doubt it.