Audio Format Shifting To Be OK'd In New Zealand

Bloodrage writes "The New Zealand government is about to define a small part of the rights assumed by the 'fair use' clause in the Copyright Act 1994. Essentially they are going to protect the consumers' rights to convert media from one format to another for personal use, making it clearly legal to transfer tracks from a commercial CD to a mix-CD, MP3 player, PDA, PC, 8-track, or tuned array of hummingbirds. NZ law already makes it clear that gifting or reselling items includes a transfer all of rights, including copyright, warantee, and licencing agreements, so providing your original is the genuine article you're not a criminal. An article in the The Dominion Post gives an outline of the responses from the recording industry and why the government is considering it. It boils down to; this is 'fair use' and don't argue, and that the government can't see how the alternative could be (affordably) enforced."

Comments

Good on them..

[mcbridematt]

..now if the fricking Howard government across the tasman, I would be very grateful.

Why is this even an issue?

[metallicagoaltender]

Legally I know why it is, but realistically, what's the problem?

I have a large CD collection, and like to keep digital versions of some CDs I listen to frequently on my hard drive (never shared), or burn CDs to carry around with me so I don't have to worry about theft/damage/loss to the original. Why could that even be a problem? Sure, people can pirate, but people are going to find a way to pirate regardless.

Maybe I'm missing the logic of recording execs, but how is pissing consumers off by limiting their rights going to encourage them to buy more CDs?

Re:Why is this even an issue?

[zagmar]

The one valid concern I can see is this, and it's a doozy if you are a record exec.

If the fair use clause is interpreted as a purchase of the rights to personal use of copyrighted material without concern for the physical form, it could allow a precedent in which the natural degradation of the storage media is grounds for forcing the producer to replace it. Eg, you buy a CD, after several years it develops holes in the recording layer. You go to the company that produced the CD, and they have to replace it, because they are technically breaking the implicit agreement that was made when you bought the CD, that you have the right to personal use of the recorded material. Imagine the record companies shelling out billions to replace CDs because of natural deterioration.

Re:Why is this even an issue?

[88Seconds]

FWIW here in NZ there is no 'fair use' clause allowing people to make copies for their own use. So in effect anyone who does rip any tracks from any CDs they happen to own is breaking the law. The record company execs are worried that by allowing some form of copying the floodgates will be opened.
In the article, Micheal Glading, the MD of Sony NZ mentions that he is opposed to the move.

Paradoxically, Sony NZ sell MiniDisc players here in NZ and also sell the blank MiniDiscs. No doubt, if you were to visit one of their retail outlets and enquire as to what you could use them for, you would probably be told by their reps that you can use them to copy CDs (I might even give it a go tomorrow).

The law here in NZ is an ass, because it is perfectly legal to buy devices for playback of ripped cds and also legal to buy the software for ripping cds.

Re:Why is this even an issue?

[timmyf2371]

I've seen this done before, albeit in the Software Industry.

I once bought a computer game, which had an offer in the manual which went along the lines of:
If your CD is lost/damaged then you can obtain a replacement for the cost of postage/packaging + obviously a small fee to cover the cost of producing the CD.

Re:Why is this even an issue?

[fpga_guy]

Your "error" is to assume reasonableness on the part of the record company.

The reasonable approach would be to pay a media-replacement fee, say $2 or so.

The really tricky problem is about the obsolescence of media. Let's say I bought "Dark Side of the Moon" on CD a few years ago. Now it's been re-released as an SACD with a stunning 5.1 surround mix etc etc. Have i bought the rights to "Dark Side of the Moon" as an entity, or just as a particular instance?

Re:Why is this even an issue?

[ajs318]

Yes, even cheaper than walkman cassettes. So why do they cost more to buy than cassettes? This is a scam that has been going on too long IMHO.

Re:Why is this even an issue?

[Eythian]

Have i bought the rights to "Dark Side of the Moon" as an entity, or just as a particular instance?

It would be fairly easy, and somewhat reasonable, to argue that you have bought the rights to the non-SACD CD version only, as there is talent (and significant man-hours) going into the production of the extra enhancements in the SACD version that aren't in the other version.

Re:Why is this even an issue?

[Technician]

They did miss a point. They did point out that more blank CD's are sold than audio recordings. In my case, that is easy to explain. I have a digital camera. Duh! My wife and I have cars. I don't carry a case of CD's with me when we change vehicles. I download and burn LEGAL public domain old radio programs (Fibber McGee and Molly, Amos and Andy, Great Gildersleeve, Lone Ranger, Abbott and Costello, and others). I put mixes of MP3's on CD's for the living room DVD player (juke box in a single tray) and portable CD/MP3 player. Somehow the record company thinks all these uses is piracy as I didn't bother to buy multiple copies or carry a huge CD binder everywhere I go. The marketing folks have missed the boat on this one by jumping to conclusions that may not be entirely correct by assuming a blank CD sale equals an unsold audio recording sale. That assumption is simply not true. I'm in my 40's now. I have a library of CD's. I also copy all the computer games to work copies as cheap insurance for the kids. All too often they are used as carpet protectors under the wheels of the chair. I'm still finishing ripping my LP's and cassettes. (that's probably labled as piracy also) I definately bought more blank CD's than audio CD's last year by a factor of about 50:1. I don't have any P-P app installed. I'm on dial-up at home. CD's that don't back up properly get returned as defective. My burnt CD's get marked Work Copy with a listing of the location of the original.

"Work Copy"
"Original on file at..."

I resent the implication I'm a pirate because I bought more blanks than I bought pre-recorded.

Re:Why is this even an issue?

[ortholattice]

The one valid concern I can see is this, and it's a doozy if you are a record exec...
You go to the company that produced the CD, and they have to replace it, because they are technically breaking the implicit agreement that was made when you bought the CD, that you have the right to personal use of the recorded material. Imagine the record companies shelling out billions to replace CDs because of natural deterioration.

Have you seen those TV commercials offering ginzu knives or whatever with a lifetime warranty? The knives are actually cheaply made. When one goes bad you can send it in and have it replaced FREE, plus a "modest shipping and handling charge" of $6.95 for a knife that might cost $0.50 to make. Their "lifetime warranty" has just turned into perpetual guaranteed income for them. The only requirement in a scheme like this is that the item be cheap to produce. You can do the math for CDs.

Re:Why is this even an issue?

[cthugha]

You are not properly constructing the "right" as it is described. The NZ government is considering creating an exemption to the copyright regime such that it is not an infringement of copyright to format-shift for personal use. In other words, you do not gain a "right" enforceable against the record companies, they lose their right to insist that you not format-shift, and you gain a corresponding liberty to do so according to your own desires.

To offer an analogy: the fair use exemption that allows copying for educational purposes would, according to your reasoning, confer a right on the public to demand that the record companies provide educational material and services related to the works in respect of which they own the copyright.

I hope that's clear. :)

Re:Why is this even an issue?

[wings]

...you can send it in and have it replaced FREE, plus a "modest shipping and handling charge" ...

<sarcasam>
They already have that method in place. Shipping is FREE, and you don't even have to send in your original.
You just go down to the local CD store and pay the modest $19.95 'handling charge' when you pick out your replacement.
If the model you want is obsolete, or no longer in stock, you can choose a replacement of 'equal or greater value'.
</sarcasam>

Aussies unite...

[fpga_guy]

and lobby for similar actions here. With the impending senate debate on the AUSFTA, it's time to lobby your local reps and senators.

With any luck, we'll be rid of Howard (US bootlicker) in November, so don't forget to speak to opposition MPs as well.

Re:Aussies unite...

[Yorrike]

DVD region coding is not illegal, however, it is perfectly legal to buy/sell DVDs that are not Zone 4 (Austrailia and NZ), here in NZ, and players that are not regioned.

For example, when I bought my DVD player, one of the selling points the guy in the store made was it was deregioned (chipped locally), and could play any and all DVDs. And it does : )

One of the most popular DVD retailers here (Real Groovy), sells Zone 1 DVDs right next to the Zone 4 DVDs (though they are more expensive due to importing).

In fact, one chain of video rental outlets was actually threatened by a local distrobutor for selling Zone 1 DVDs in store (not renting, that would be illegal), before the local boys had released the zone 4 distro. It's all linked to our parrallel inporting laws, which allow for such things.

Odd that a former British colony has more freedom than the land of the free : )

wow

[natex84]

a government finally showing some sense in the matter. i recently purchased several cd's from a favorite band of mine, ripped them, and the cd's now are nestled safe in my cd case. since i don't have a cd player at all (besides in my pc) the last thing i want to see is a cd that is not rippable. go NZ! :P

We have great laws here in NZ

[walter_kovacs]

First legalized prostitution, and now this. ;-)

You're not helping

[fpga_guy]

I don't know why you feel you have some god given right to freely distribute something that you don't own...

I'm all for fair use - I bought it, I can transfer media, backup and so on.

But insistence that you should be able to freely distribute material is just ammunition for the RIAA, ARIA and other industry lobbiest bastards' weapons against fair use.

Re:You're not helping

[paramecio]

It's pretty public domain that some people want to simply get things for free, but this fact is the base for RIAA and such to steal our money for free. I understand that such companies want to make free money, as there always have been and always will be such low people in this world. What pisses me off is that our governments are doing nothing about it. Or maybe they are getting a little compensation ;) $$$

Here in Spain we have the SGAE, a similar RIAA-thing. This agency is serving Spanish artists (serving? hahaha! here in spain artists suck so hard that SGAE charges even them!!! hahaha!). Well, the point I want to make about Spanish state of things is that 99.99% of the Spanish music artists and therefore its works are plain crap. As most (some) people simply skips crap on the stores these artist must have a way to earn money. So they sign up for the big cow, who fucks us all, drinks its own milk, and shits some peanuts for them.

Don't Get Excited

[tonyr60]

Before all you geeks get any ideas, NZ is a right crap place. The Govt is bloody awfull, the weather is terrible, and despite what you think you know, LOTR was actually made on the moon.

We don't want any more to migrate here, the place is OK as it is.

Re:Don't Get Excited

[praksys]

they've yet to recognise gun ownership as a fundamental human right

NZ has an unwritten constitution so it is pretty hard to say which rights are recognised as fundamental. NZ'ers also have a lot of guns. Some estimates run up to about 1,000,000 guns for about 4,000,000 people (i.e. about one gun per household).

Wisdom From Deep Down Under

[amigoro]

From the country that gave us LOTR and the All Blacks, comes something equally important: A piece of sensible legislation.

There is a lesson to be learned here. There's no economic loss to record companies when people copy their own CDs to MP3s or some other digital format. However, it will cost the government millions to enforce a law that prevents that.

Therefore, the sensible thing to do is, let the people copy their own music. As long as they don't pass it on illegitimately (which, actually happens even if you ban copying once own CDs), this should be a solution that makes both the companies, the people, and the the industry happy.

It's high time other countries followed soot.

Three cheers to the Kiwis!!!

Moderate this comment
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New Zealand is Progressive

[oacis]

New Zealand has always been surprisingly progressive when it come to technology (surprising because of the decisions of some other *cough* Australian *cough* governments, not because of anything else). DVD players with region codes are illegal in New Zealand - they see it as anti-competitive and trade restrictive.

That's why I buy my stuff from NZ - the $AU coupled with the open trade agreement - no import tax - yay!

Re:New Zealand is Progressive

[Anonymous Coward]

WTF do people from other parts of the world think we are part of Aus?

You're one of top two least corrupt nations on the planet, one of the top three on economic freedom, press freedom is high and you made the most successful film trilogy of all time. So we have to annoy you somehow...

Kiwi

[Viceice]

... or tuned array of hummingbirds.

You mean, a tuned array of Kiwis?

This is what upsets me

[paramecio]

"More blank CDs are now sold in New Zealand than pre-recorded discs."

Shit, man! Main use for blank CDs is not music-and-video-piracy for many of us. I do backups, store my five-megapixel pictures and burn linux distros to give away to my friends! And I'm just avoid talking about hard disks...

I feel sick! Stop this madness!

Sony NZ Hypocracy

[donnz]

Sony NZ managing director Michael Glading said he was totally opposed to the move, which he believed would "open the floodgates" to unrestricted piracy.

This would be the same Sony NZ who have been selling MP3 players in New Zealand for many years now. How on earth did they expect their clients to find anything to play on these devices without breaking the law? I'd like to hear them give an answer to that.

Binding media ownership to licenses

[lightspawn]

NZ law already makes it clear that gifting or reselling items includes a transfer all of rights, including copyright, warantee, and licencing agreements, so providing your original is the genuine article you're not a criminal.

What if an actual criminal steals the genuine article? If my rights disappear because no longer own it, does it mean they get transferred to the criminal?

What if the original article is destroyed? Does it matter how it happened?

Re:Binding media ownership to licenses

[tonyr60]

"What if an actual criminal steals the genuine article? If my rights disappear because no longer own it, does it mean they get transferred to the criminal?"

No, the NZ crimes act states that ownership of any property stays with the owner until it is legally assigned to some other entity. So even if a CD is stolen, the owner remains the legal licensee.

Re:Binding media ownership to licenses

[Alsee]

Disclaimer, I don't know squat about NZ law, but it's almost inconceivable that NZ law is different than just about every other country in the world on this...

So even if a CD is stolen, the owner remains the legal licensee.

No, you mean the owner remains the legal owner.

You are not a licensee unless they have licenced you copy rights to manufacture more copies or for public performance or the like. Only rights get licenced, particular copies are always owned. There is no such thing as a licence to "use". You buy a book and you have every right to read it without any licence whatsoever. You buy a CD and you have every right to listen to it without any licence whatsoever.

The copyright lobby is trying to totally redefine copyright to grant them rights over ordinary "use". They are doing a frightningly good job of convincing the public that copyright already says various things that they want it to say. When the public and the legislators believe that copyright already says what the industry wants it so say then it becomes easy for the industry to get laws passed making those changes because no one realizes it's a change. Hell, even when legislators do realize it's a change they think they are "fixing" a problem with the law because the law didn't say what they thought it was supposed to say. It's a very insidious tactic, and the media / publishing companies are the masters of manipulating perceptions.

-

Re:MOD THIS UP!!!

[SlightOverdose]

For the Americans, this sums up Australian politics.

Howard (aka "Little John"): Spends his time dry humping Bush's leg. Formed a "once in a lifetime" free trade agreement with the U.S. That gave us absolutely nothing, and put a shitload of aussies out of work. Is extremely vague when asked anything.

Latham: Opposition Leader. Cries like a little girl in parliment when things don't go his way. Breaks taxi driver's arms in his spare time.

Crean(aka "The invisible man"). Did absolutely nothing to try and win our votes. Superseded by Latham. Last seen ignoring people.

Beazly(aka "Big Kim"). Nobody liked him. Lost the last federal Election. Now he's better than any candidate currently running.

Pauline "Please Explain" Hanson: Fraudulently formed a political party and stole half a million dollars of tax payers money, and god knows how much in donations. Got caught. Went to Jail. Still has supporters who claim she was a political prisoner. Her only policy, EVER, was to get rid of speed cameras. Spent an hour on sixty minutes telling us that. Also tried to bring in a new tax system, the design of which she stole from someone else (who, incidently, said it wouldn't work in the real world). Last seen complaining about something.

Copyright violation is a civil offense

[dave420]

"providing your original is the genuine article you're not a criminal"

Even if your original was copied from a mate, you'd still not be a criminal unless you were profiteering off the copying. Copyright infringement is a civil offense, not criminal in all but a handful of cases. As soon as people realise that copying music isn't a crime but an offense, they'll see that this whole thing has been pulled out of RIAA's ass and promptly blown out of all proportion to help their flagging bank balance.

Re:EU should have this

[NigelJohnstone]

"Where is it illegal? UK? They don't want to be a part of Europe anyway"

Then there's no argument against having it in a unified EU copyright!

From the art.

[chris_sawtell]

"It's really about enforcement. How on earth are we going to stop things like copycat kiosks springing up around the country?"

You're not. You are going to allow the production of recordable cds and either charge as if a wounded bull for the originals -- in effect the sheet music industry does this -- or you are going to set up licenced "copycat kiosks" where your customers can create music selections of their choice. If I was a recording industry executive I'd be jumping for joy because I no longer have to carry any manufacturing production costs whatsoever.

Your music retailer is now no longer a spacious shop with hundreds of boxes on shelves, but a small boutique establishment with a licence to copy, a fast Internet connection, a computer, and a bank of CD writers. All legal and above board. What's your problem? Providing a useful service perhaps?

Correct me if I'm wrong but....

[jimicus]

does this new law include a provision making it illegal for the recording industry to produce "copy protected" CDs?

Because if not I envision the situation becoming "you're legally entitled to copy it but good luck trying!".

Strange, they seem a little late with this law...

[iwein]

The change would make it legal for someone who owns a legitimately obtained CD to make one copy for their own private use. Under the widely flouted current law, all copying, even that for personal listening, is banned.

Hmmm, i thought it was quite normal to have the right to make a copy for personal use. Oh well, maybe it's just that i'm not a US citizen..
look here and mind this quote: (...) CD-Rs were not seen as a media intended for copying music.

I would like Sony NZ to Explain

[Blue_Wombat]

Sony NZ should be asked to explain this quote from the article: "Sony NZ managing director Michael Glading said he was totally opposed to the move, which he believed would 'open the floodgates' to unrestricted piracy."

Sony NZ sells Minidisc recorders with software to rip CDs. Also, the NZ Sony Style shop (corner of Lambton Quay and Willis Street for any interested Kiwis) last week (it may still be there this week, have not looked) had a *huge* window display exhibiting their new hard drive jukebox product. This included photos of all the stacks of CDs you could do away with by copying them to said jukebox.

Furthermore, given that the NZ recording industry association clearly opposes this, and considers it illegal and "theft" at present, will they explain why they don't: (1) expel Sony NZ (which is a member); and (2) seek criminal prosecution of Sony executives. After all, Sony is selling the tools that permit the "theft" from their members, and blatantly advertising this capability as the main reason to purchase

It is a bit rich for Sony to sell products and then lobby for it to be illegal for the hapless consumer to use the products Sony has sold them.

Now the obligatory:

1. Sell overpriced product to consumers

2. Profit

3. Lobby to keep using what you have just sold illegal

4. Prosecute your customers for buying from you

5. More profit

A business strategy to make the RIANZ and RIAA proud.

Is this just for audio or for all media?

[jonwil]

Making it for all media would mean that time-shifting TV programs would be ok, copying a DVD to as "media center" and watching it would be ok, copying a game to the hard disk and playing it would be ok etc. i.e., as long as only one copy is in use at once, you can have multiple physical copies.

Selling the same thing over and over again is good

[GreatDrok]

For the producers of the media.

Look at the windfall that occured when CD came in, large amounts of profit made from people buying the same material again on the new format. Now that it is in digital format, how is the industry going to repeat that windfall now that everyone has bought pretty much every CD they are ever likely to need and the current music production is ghastly. I for one know that the 2.7K tracks I have on my iPod is quite frankly enough. If people are able to copy this material for their own use then you can have backups.

Strictly speaking when you buy a CD you are buying a license to the material, not he delivery media. By preventing people from being able to copy the material they have a license to onto a fresh media platform the record companies are trying to preserve the cash flow generated by selling people multiple licenses to the same thing which is frankly, money for old rope!

Incidentally, a similar thing has happened with TV, certainly in the UK anyway. Here if you get Sky (Murdoch's digital sat system) you get a single box and a single card. If you want to record one channel and watch another you need two boxes and two subscriptions, paying twice for the same thing. This also strikes me as quite unfair.

Re:MOD THIS UP!!!

[ryepup]

For the Australians, this sums up American politics.

Bush (aka "Warrior King"): Fighting for the peace and justice of the rich's money. Master propagandist, but shooting himself in foot with over-the-top commercials and muzzled federal employees resigning and talking to the press. Has a campaign fund of over 100 mil.

Kerry: Not Bush. Flip-flopped on issues a bit, decorated Vietnam vet, best hope for a not-Bush president. Campaign fund of around 2.4 mil.

Lets see if bush can buy the country again. (The last time being the pointless $300 tax rebate, makes everyone like him for something pretty insignificant)

Tuned Hummingbirds

[Hoonis]

I suppose overclocking them is out of the question.

Branches?

[Walkiry]

You mean tentacles, right?

Re:And on a side note...

[trendyhendy]

Fair use of a sheep, hmmm...
Can I let my friend borrow my sheep? Yes.
Can I make a copy of my sheep for my friend? Yes, but not legally.

Reminds me of the joke:
Aussie: "Do you shear you sheep over in NZ?"
Kiwi: "No, get your own damn sheep!"

Disclaimer: Yes, I am a NZer.

Re:Problem with copyright law.

[pjt33]

Copyright protects the expression of an idea.

My message to Michael Glading

[darkpurpleblob]

Hi Michael,

I have just read the article at http://www.stuff.co.nz/stuff/0,2106,2852764a11,00. html. You say you are totally opposed to the move, because you believe it would "open the floodgates" to unrestricted piracy.

As a software developer I spend a lot of time in front of a computer at both home and work. I like to listen to music when I am using computers. Under the current law (which is what you support, given that you are totally opposed to the move), I can only legally play copyrighted music from CDs in CD-ROM drives on my computers (and don't even get me started on copy-controlled CDs). During the course of a workday, this means interrupting my workflow up to 10 times to switch CDs. Of course, if I decide I'm sick of a CD before it is finished it means another switch. Clearly switching CDs quickly gets annoying. It also proves very annoying to transport CDs I want to listen to between work and home each day.

In fact (as I am sure you are aware), Sony itself currently sells Minidisc recorders which currently allow music to be copied illegally under the current law. Given your position, I hope you are overseeing the removal of these useless recorders (as it is illegal for people to use them to copy music) from sale in New Zealand.

However, if the law changes to allow fair personal use, my life suddenly becomes easier because I can make a copy of my music in a digital format which makes it much easier to transport and switch between listening to different music.

Your viewpoint is analagous to saying no-one should be able to drive cars because some people speed and cause accidents in which people die. However, in real life, people are allowed to drive cars. Why? Because cars make our lives easier. The speeding problem is dealt with through driver education, and dealing punishment to those who do speed as a discouragement to them and others. Similarly the music sharing problem is dealt with by consumer education, and dealing punishment to those who do share music as a discouragement to them and others.

Without education and punishment, the current law would be effectively 'powerless' to discourage people from sharing copyrighted music. Under the proposed changes, it still will be illegal to share copyrighted music. Provided there is still continued education and punishment, I can't see any reason why the proposed law change will result in increased music sharing activity.

By opposing the move, you are only denying otherwise law abiding consumers the opportunity to use technology to make their lives easier.

Simon

Re:MOD THIS UP!!!

[Anonymous Coward]

For Australians and Americans, this sums up New Zealand politics:

Helen Clark (the Prime Minister): scheming realpolitik plotter. Pokes her tongue out in parliament & behaves like a nyah-nyah-nyah child there, is always either scowling & smurking, or smiling narcistically whenever she's the centre of attention. Gives herself excessive self-praise as a "competent" prime minister. Has signed other people's paintings & passed them off has her own. Seems to intensely hate anybody not part of the 'university left' / 'liberal' clique, such as George Bush and the Greens (whom she calls Anarcho-Goths or something). Called a TV3 reporter a "little creep" after he interviewed her about covering up about a G.M. corn release. Dresses and speaks like a lesbian (though she is married, and denies she is).

Don Brash: Opposition Leader, former head of the Reserve Bank: has no understanding what others are thinking. Neo-liberalist extrordinaire. Has famously stated that nobody should own their own house. Lost to the Social Credit Party in a National Party safe electorate seat... twice. Is married to a Singaporian women he had an affair with while still married. Main campaign strategy seems to be fussing about special-rights given to Maoris (they vote for Labour, so the government tries hard to aplease them, along with immigrants).

Winston Peters: leader of the New Zealand First party: arrogant ruthless task-oriented political battler. Obsessively despises corruption and ineptness. Highly intelligent. Practically is the whole party's functional existance. Widely considered to have an alcohol problem.

Jeanette Fitzsimons: leader of the Green Party. Very nice, kind smiley person. Has the charisma of a half-watt light bulb. Lives on her own self-sufficient organic farm. Has some crazy person stalker her.

Maybe you'll find something more positive about NZ here: http://www.imdb.com/title/tt0298228/

NZ prostitutes

[Rupert]

I have to say that the ones I saw in Auckland were quite beautiful and had very soft wool.