Legal Implications of MP3 Rulings

Daniel M. German writes "The CyberLaw Journal of the NYTimes has an excellent article about the MP3 and the implications of the recent ruling on the case RIAA vs. Rio. Simply put, by making a copy of your MP3 you are "space shifting" your already adquired music. Further, it is fair use. Some even claim that fair use might mean it is legal to own a copy, even if it came from an illegal source. Quite interesting reading. " Its the NY Times, so you need a free account to read it.

Comments

Is it a toaster,or a bread-preparation peripheral?

[RSevrinsky]

In affirming the district court's denial of an injunction against Diamond, the appeals court held that the Audio Home Recording Act did not apply to the Rio, which is not a "digital audio recording device" at all but rather a computer peripheral. In addition, the court held that the hard drive of a personal computer, which also makes copies of MP3 files for downloading to the Rio, is not governed by the act.

This is the crux of the battle between any purveyor of information commodities in analog/physical format and a purveyor of the very same commodity in digital format (or sometimes even between 2 digital formats!). The law is awkwardly worded to refer to a digital audio device which could be marketed to consumers, which, according to this ruling, excludes whatever bizarre things we choose do with our general-purpose digital devices. Observe:

(3) A ''digital audio recording device'' is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for -
(A) professional model products, and
(B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.

I'm not quite sure how calling the Rio a "peripheral" excludes it from this law. In fact, I'm not quite sure how you can call the Rio a peripheral, since it's actually useful even without a computer, as opposed to a printer, scanner, modem, etc. Nonetheless, this law seems to apply as easily to Winamp and RealJukebox as it does to the Rio (after all, is software not a device, albeit not a physical one?)

In any event, the courts (and businesses) are going to have a hard time of determining what is the nature of any information commodity as it becomes available in digital form, and consequently, is easily accessed from any of a number of devices. Books, TV shows and movies, and phone calls will certainly cause growing pains (and quite possibly, bankruptcy) for publishers, networks, studios, cable companies, and phone companies (not to mention ISPs) as the physical media are replaced by digital formats.

One thing is certain, though: the excuse of "it's just part of a computer, not an X" is not going to hold legal weight much longer. It won't make any sense when your TV/VCR, radio, and phone are computers or network devices.

- Richie (with apologies to Nicholas Negroponte)

Re:Let's not be greedy here.

[alkali]

The whole notion of claiming that someone might be entitled to "fair use" of a copy that is not legitimately owned, is absurd.

This clearly isn't so.

Suppose I am a journalist in a community where a painting by a modern artist is prominently displayed in a local museum, and I print a 2" x 2" photo of the painting in an article about a new gallery. That's certainly fair use.

Now suppose that the painting has been stolen from the museum and held as a "hostage" by a group of terrorists. These terrorists contact me to explain their point of view, and show me the undamaged painting to prove their bona fides. I print a 2" x 2" photo of the painting in the paper. Are you suggesting that's not fair use because the terrorists don't own the painting?

(Alternatively, suppose that a group of radical art critics are manufacturing counterfeits of the painting in order to prove some political point, and I print a photo of the counterfeit. That would also seem to be fair use.)

Conclusion: fair use doesn't depend on whether the source is legit.

Re:How many industries survive for centuries? (SP?

[IntlHarvester]

The big monolithic recording industry that we know today hasn't even been around 50 years.

Well into the 1950s, most records were made by local distributers or the artists themselves and were sold through local outlets. I heard once that in the 1950s US South, there was something like 100 independantly black owned record companies. (Are there even 100 independant/not-pirate MP3 sites on the whole WWW?)

The big national money wasn't really in the records - it was in the sheet music (so people could here their favorite local bands play the established tunes).
--