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CAN YOU LEGALLY COPY MUSIC? VERDICT: DEPENDS ON WHOM YOU ASK
The court's finding in the Betamax case indicates a clear analogy in copying music to CD for private use. In CD audio duping, the fact that an entire CD is reproduced, from an original that the consumer bought with the understanding that he or she had an unlimited right to play it wherever he or she pleased as many times as he or she pleased and in whatever order he or she pleased, should not prevent the purchaser from claiming that it is a fair use to change the order in which the tracks are played for convenience's sake or added listening pleasure. What you are doing is, in effect, "order shifting" instead of "time shifting," which is permissible in the Betamax case. It is difficult to see much difference between the two uses.
So, if you are so inclined, go ahead and make those compilations or reordered copies of your existing CDs, LPs, and tapes. Although you may not have a "right to copy," you do have immunity from any copyright infringement action by operation of Section 1008 of the Audio Home Recording Act, provided that the copying is performed with a device designed in compliance with that Act. But expect the Recording Industry Association of America to attempt in short order to curtail your rights by trying, through legislation or litigation, to force CD-R/RW drive makers and CD-R/RW software companies to prevent you from compiling your favorite songs from discs you own to CD-R. And expect to see them in for a battle when they try.
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Fair Use Hypotheticals:
An Exercise in Frustration
Assuming that home copying is in fact a copyright violation, it is interesting to look at the fair use defense in some hypothetical cases. The analysis is difficult; a federal court described the fair use Doctrine as "so flexible as virtually to defy definition," but it seems to come down in most cases on the side of home recording being a fair use. The following is the statement of the fair use doctrine within the Copyright Act of 1976:
Section 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered will include the following:
- the purpose and character of
the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes - the nature of the copyrighted
work - the amount and substantiality
of the portion used in relation to the copyrighted work as
a whole - the effect of the use upon the
potential market for or value of the copyrighted work.
"The fact that a work is unpublished," the statement concludes, "shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
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