What Do You Get When You Buy a CD?

Wiseleo asks: "What is the full value and meaning of the entire transaction when someone exchanges money or its electronic equivalent for a new sealed CD?Notice that I am being extra careful to say that someone actually acquires anything of value in the deal. I am not claiming that anything is bought in the traditional sense either. I am in fact not claiming that any value whatsoever is procured through the transaction. Can someone actually answer this question? I would really love the RIAA to do so, and in fact, I intend to contact them for this purpose. This question is surprisingly complex. I first attempted to get it answered some 10 years ago by several music stores and they could not answer it. I guess I should have talked to attorneys, but I was a teenager clueless of such an avenue. I tried again late 90s and again I couldn't get the question answered. In other words, any 'commercial' CD that is produced by a RIAA-affiliated CD manufacturer clearly states that it is not to be loaned. If I 'buy' a CD, what am I actually paying for?"

Wiseleo adds:

• Am I paying for the CD media itself?
• Am I paying for the right to play that particular CD media?
• Am I paying for right to listen to that particular recording without relying on mass media outlets that already paid RIAA copyright holders through ASCAP?
• What happens if I own the same recording in multiple digital formats?
• What happens if a particular copyrighted material is on several of my media and comes from same master source?
• What if my media is damaged, should I not be able to request replacement?
• If I already own let's say Metallica S&M DVD set, am I legally allowed to borrow a friend's S&M CD set, since both media are mixed from the same source [and possibly covered by the same license]?
• What are the quality tolerances and who sets them? At which point is the original recording no longer subject to copy limitations? What happens if my used media is scratched?
• I am inclined to believe that the acquiring party simply acquires a license for a particular recording. It is currently implied, at least in my understanding, that the license is perpetual and as such a license holder is entitled to the ability to use the licensed object perpetually, regardless of the media it was originally supplied on or the media player of choice at the moment. If my understanding is correct, and the content is licensed to the consumer, then where is the full license agreement?
• By the [above] argument, should we not consider it to be a shrink-wrap and thus largely unenforceable EULA?
• Is it not true that shrink-wrapped software is not returnable to the retailer but it is returnable to the manufacturer upon termination of license? Should not music be under the same category?

What exactly do the RIAA's customers actually pay for? Until this question is answered, how can we possibly hope to communicate with the organization unless we know our exact terms and conditions that accompany the entire term of the transaction?"

Comments

What you bought

[Anonymous Coward]

(1) the physical CD media

(2) a license to the copy of the recording that is reproduced on the CD.

If your copy of the cd is destroyed, you're fucked. Youre license doesn't give you a generic license to a copy of the work that was reproduced on the CD -- it gives you a license to a *SPECIFIC* copy. You might have fair use rights in addition to the license rights, but that's a whole other ball of wax.

Re:What you bought

[GigsVT]

It's a very nice post, it's almost entirely wrong though.

There is no license. The copyrighted work is sold "all rights reserved", just the same as if you bought a book or a movie.

This means, the only things you can do are the things allowed under copyright laws.

Fair use is often confused to mean more than it does. Fair use allows use of parts of a copyrighted work, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research".

Fair use would rarely cover the distribution of an entire work.

The criteria used for determining whether a particular use is fair use are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

That's straight from the law.

The Audio Home Recording Act of 1992 also plays a part. (Side note, it has a DMCA-like anti-copy-control-circumvention clause that people rarely mention these days).

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

The idea was, as long as a digital recording device implemented the "Serial copy management system", then no action could be brought against consumers that used the device for digital recordings.

Then there is First Sale. Basically, if you buy a work, you can't be prohibited from selling that same copy of that same work. This concept was used to successfully defend the importation of overseas versions of copyrighted works.

I'm not sure about all the caselaw surrounding these laws. There may be other things I am missing, but I think these are the main relevant parts.

I've read interviews where...

[n1k0]

I've read interviews where Oppenheim has been asked this directly, and he unabashedly side-steps the question everytime (I should say 'questions', as he does this constantly, much like Dubya in his recent press conference). Good luck getting an answer out of them.

-Nick

case law

[Telastyn]

In America, per court ruling:

Simply put, you get the ability to use the information on the media to your own content. Anything that would provide that information to anyone else without removing your ability to use the information is considered illegal with one exception:

You may allow others to see, listen, or otherwise experience the information as long as they do not duplicate it, or are charged for it, and they are of "reasonable" numbers.

In essence, the original media is the license, and the license is simply the built up rights and limitations as based on precident.

Here is my attempt to answer the questions

[angle_slam]

Am I paying for the CD media itself?

Yes. But it is not erasable, so there isn't anything you can do with it accept play it or use for decorating purposes.

Am I paying for the right to play that particular CD media?

The copyright statutes limit you ability to perform the contents of the CD to a non-public venue.

Am I paying for right to listen to that particular recording without relying on mass media outlets that already paid RIAA copyright holders through ASCAP?

Have no idea what this question means. Yes, you have a right to listen to CDs that you buy. It has nothing to to with radio.

What happens if I own the same recording in multiple digital formats?

Same thing that happens if you own two copies of a particular book--nothing. You just own two different copies of the same thing.

What happens if a particular copyrighted material is on several of my media and comes from same master source?

So what. You own the CD and the right to privately play the contents. Whether you own more than one copy is irrelevant.

What if my media is damaged, should I not be able to request replacement?

No. It's not a license. You own the disc and have a right to play it. You have no right to a free replacement.

If I already own let's say Metallica S&M DVD set, am I legally allowed to borrow a friend's S&M CD set, since both media are mixed from the same source [and possibly covered by the same license]?

No license is involved. Of course you can borrow a friend's copy of the CD, there is nothing that prevents the borrowing of CDs or DVDs. You won't get caught anyway.

What are the quality tolerances and who sets them?

Don't know.

At which point is the original recording no longer subject to copy limitations?

When the copyright to the works expire (generally 95 years after first publication). You'll be dead before any appreciable quantities of CDs are in the public domain.

What happens if my used media is scratched?

The scratches may effect the ability of the laser to read the data on the CD. Error correction takes care of some of that.

I am inclined to believe that the acquiring party simply acquires a license for a particular recording. It is currently implied, at least in my understanding, that the license is perpetual and as such a license holder is entitled to the ability to use the licensed object perpetually, regardless of the media it was originally supplied on or the media player of choice at the moment. If my understanding is correct, and the content is licensed to the consumer, then where is the full license agreement?

Wrong. There is no license.

# By the [above] argument, should we not consider it to be a shrink-wrap and thus largely unenforceable EULA? # Is it not true that shrink-wrapped software is not returnable to the retailer but it is returnable to the manufacturer upon termination of license? Should not music be under the same category?

See above. No license.

FALSE

[crapulent]

If your copy of the cd is destroyed, you're fucked. Youre license doesn't give you a generic license to a copy of the work that was reproduced on the CD -- it gives you a license to a *SPECIFIC* copy.

This represents a poor understanding of Copyright Law becuase it is false to fact. You are specifically allowed to make copies of the work as defined under Fair Use. Unfortunately, Fair Use is not clearly defined, but rather a weighing of factors. Specifically, there are four general considerations to Fair Use, from USC Title 17, Section 107:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   
2. the nature of the copyrighted work;
   
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   
4. the effect of the use upon the potential market for or value of the copyrighted work.
   

Based on these four criteria, and previous precendent, it seems clear that making a copy of a work (in whole) for personal archival purposes DOES fall under Fair Use. From the eff's Fair Use FAQ:

What's been recognized as fair use?

Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)

Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:

Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)

Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.

Therefore, as permitted under the eff's Fair Use interpretation, you ARE entitled to make a copy, and are NOT bound to the single purchased medium. I'm afraid I must side with their opinion in this matter, and not a random slashdot poster's opinion.

Let's look at this differently.

[crapulent]

The way copyright law works is that it grants the copyright holder exclusive rights, and then specifies certain conditions under which some of those rights are forfeited. So rather then looking at this from the point of view of "what rights does buying a CD give me?" you should look at it from the point of view "The law gives the copyright owner certain rights, and I am free to do whatever I want as long as I don't infringe those rights." The main rights that copyright grant are outlined in 17 U.S.C. 106 and amount to the following rights:

1. to reproduce the copyrighted work in copies or phonorecords;
   
2. to prepare derivative works based upon the copyrighted work;
   
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
   
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
   
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
   
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission
   

Chaper 106a also gives further rights dealing with the right of attribution ("the paternity right") and the right of integrity... these specify that an author can generally claim ownership of works and disclaim ownership of distorted versions of the work, etc.

Chapters 107 thru 122 then whittle away at these rights, defining certain exemptions and special circumstances. Most well known is Chapter 107 which outlines the Fair Use principle which allows a looser enforcement of the above rights in certain circumstances, for the overall wellbeing of society... i.e. exceptions for literary, satirical, educational, literary, critical, etc. purposes. This is the old "you can photocopy a few pages from the encyclopedia so you can read it at home" clause. See sections 2.8 and 2.9 of this FAQ for a very good explanation of Fair Use.

Most importantly, Fair Use also allows time shifting and media shifting for the purposes of personal, non-commerical archival use, at least according to the EFF.

Anyway, the point is that the way copyright law works is not that it says "you get these rights when you pay for a CD", rather it states "the owner of the copyright has the following exclusive rights (with a few exceptions.)"

So, for example it dictates that the copyright holder has the right of public performance which means that you are free to play the CD any way that you want, so long as you don't infringe on this "public performance" right (or any other right.)

Alternatively put, you can do anything you want, just so long as you don't infringe any of the above enumerated exclusive rights.

A CD Is Portable Personal Property

[John Hasler]

> What exactly do the RIAA's customers actually pay
> for?

A piece of plastic, which they own free and clear and can do with as they please as long as they make no permanent copies. If the piece of plastic is defective they can get it replaced or get a refund subject to local consumer laws. What else they own or possess is irrelevant. No licenses are involved.

Re:What you are paying for:

[andy@petdance.com]

I don't get this "you get one good song" thing. Are you only looking at the stuff that's hot on MTV? Here are some CDs off the top of my head that are solid goodness, and not one is a hits package:

• Rolling Stones, Beggars Banquet, Let It Bleed, Sticky Fingers, Exile On Main Street
• Prince, Purple Rain and Sign O' The Times
• Silkworm, Firewater
• Shellac, At Action Park
• NoFX, Punk In Drublic
• Everything in the Beatles catalog
• Dave Brubeck Quartet, Take Five
• Norah Jones, Come Away With Me
• Johnny Cash, At Folsom Prison or At San Quentin
• Willie Nelson, Red-Headed Stranger
• The Cars, first album and Candy-O
• Neko Case, Furnace Room Lullaby
• Sonic Youth, Daydream Nation
• Bruce Springsteen, Nebraska
• Merle Haggard, Big City
• George Jones, I Am What I Am
• AC/DC, Back In Black
• Iron Maiden, The Number Of The Beast
• Joe Jackson, Look Sharp! or Night And Day

There, 25+ albums you can go buy and enjoy.

There's plenty of good music out there, well worth paying for.

Re:Actually, the GPL hasn't exactly worked..

[crapulent]

Not likely if you reproduce the song in whole. If you used a 30 second exerpt, then it probably would. According to the Supreme Court "undoubtedly the single most important element of fair use" is the degree to which the copying affects the potential marketability or value of the work. If the copying has a potential to affect the sales (or otherwise cost the owner revenue) then it is not likely to be considered Fair Use. Distributing a copy in whole of a song is likely to be viewed as having this potential, regardless of the intent of criticism -- which to me seems pretty bogus, if you're truly looking to review a track you don't have to include it in its entirety.

To quote the Supreme Court decision in Harper and Row v. Nation Enterprises:

"Fair use, when properly applied, is limited to copying by others which [p*567] does not materially impair the marketability of the work which is copied."

Read sections 2.8 and 2.9 of this FAQ for a good Fair Use discussion.