“Fair Use” and the law

The Shape of Days has an extended debate running regarding the legalitites of music copying, “sharing” and the like. The post itself is unremarkable, but the comments following got interesting, and I was part of the debate. I started to write this as a response, then decided that for sheer size it warranted throwing it up here and saving Jeff some bandwidth. The debate at this point regarded the legality, under the concept of “Fair Use” of making a compilation from music CDs you own, and then giving that CD to a friend.

(Note: this discussion is regarding U.S. law.)

From Nolo, a description of “Fair Use” considerations (my comments are the unquoted paragraphs…):

Rule 1: Are You Creating Something New or Just Copying?

The question to ask here is whether you are merely copying someone else’s work verbatim or instead using it to help create something new.

Copying a whole album would not fall under fair use, but making a compilation arguably does. Of course, since today you can commonly buy a single song, this aspect has shifted a bit — but what about songs you still cannot obtain singly?

Rule 2: Are Your Competing With the Source You’re Copying From?

Without consent, you ordinarily cannot use another person’s protected expression in a way that impairs (or even potentially impairs) the market for his or her work.”

If my friend makes a compilation CD, would it make me less or more likely to later buy the source CD? In reality, people passing around compilations is some of the best advertising musicians have, especially if they are lesser-known. Note the distinction I made above between copying one song versus the whole album.

Also see note above about availability of single songs. If you give me a whole song, I’m less likely to go buy that one song off of iTunes….

[Rule 3 not relevant to the discussion…]

Rule 4: The More You Take, the Less Fair Your Use Is Likely to Be

The more material you take, the less likely it is that your use will be a fair use. As a general rule, never quote more than a few successive paragraphs from a book or article, or take more than one chart or diagram.

Again, one song off an album put into a compilation, vs. copying a whole album. Most of this is a question of “Where do you draw the line?” (or where will a judge draw the line?)

Rule 5: The Quality of the Material Used Is as Important as the Quantity

The more important the material is to the original work, the less likely your use of it will be considered a fair use.

So it seems there’s a hitch: does copying the One Good Song of an otherwise lousy album count as taking the “most important part” of the album? Hmm….

There is no more commonsensical definition of fair use than the golden rule: Take from someone else only what you wouldn’t mind someone taking from you.

Okay, we’re getting away from legalisms here, but I personally am a singer, and I’ve considered making an album. Wholesale copying of said album would obviously hurt sales, but people passing around copies of one or two individual songs to personal friends would probably be good advertising. It’s called “word of mouth”, a.k.a. “buzz” — and is just about the best marketing you can get.

A different, and far more pertinent article, (Bytes of Law – The Law of Digital Sound), says:

The vague sense among the populace that it is okay to make copies of music is based on the Audio Home Recording Act (AHRA), w.30 which Congress passed in 1992. …[T]he Act offers… protections from lawsuits against consumers who use [digital audio recording] devices and media for making recordings of music for noncommercial use.[…]

[T]he intention of Congress was to protect “private, noncommercial use.” Under this understanding, Joe can make copies [of CDs he owns] basically only for his personal, private use-not for his friends or anyone else. I suspect the reality is somewhere in between. No, Joe can’t make copies for the world, but I doubt making a compilation of his favorite tunes for his girlfriend will get Joe into trouble.

So is making a compilation CD and giving it to my friend “letter of the law” illegal? Arguably yes; but… arguably no: by reading the term “private use” that strictly you could also argue that it’s illegal for me to play my compilation CD within earshot of my friends — which gets us into the realm of absurd.

Seriously, read the second article. It’s very specific to this topic, and has a lot of good information about some of the legal arguments flying fast and furious these days.

Comments are invited and encouraged

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