Given the Fair Use Doctrine and the RIAA's attempted assault on audio consumer liberties, a law school examination in a class on "CD-Audio Copyright Law" might include the following questions:

1. Fred Copyman is a music lover. He collects records, cassettes, and CDs. All of the records, tapes, and CDs in his collection have been purchased by him from music stores. Copyman has a favorite LP that is not available on CD. Each time he plays it, however, it physically degrades and he is afraid that it will eventually become unplayable. He makes a copy of the LP to CD. The CD is for his own private use. Is this a fair use? [an error occurred while processing this directive] This is a noncommercial use made partly for the convenience of the copier and partly for the preservation of the copyrighted music that is embodied in the material object, the LP. This perspective weighs in favor of a finding of fair use. The nature of the work is a musical recording. As a musical recording, it is generally given more protection than an informational piece such as a news story and that condition would weigh against a finding of fair use. The amount of the work copied is the complete contents, which also weighs against a fair use finding. But what is the effect of the use on the potential market for or the value of the copyrighted work? The potential market in this case is presumably none, since the LP is out of print and the material contained therein was never committed to CD or tape. Therefore, the use has no impact on the value or the potential market of the copied work.

Additionally, in this case, a court should consider the preservation motive, as at some point Copyman had paid for the LP and thus owns tangible personal property embodying copyrighted material. Copyman has a right to protect that tangible personal property that he purchased. Of course, the copyright owner it could also argue that when he bought the LP he was presumably aware that it would degrade with repeated playing and at some point he might have to purchase a new copy. If he could purchase a new copy on tape or CD, then this might not be a fair use of the work. However, since in this case Copyman cannot obtain the material anywhere else, his right to protect his personal property should supersede his knowledge that the LP would at some point have to be replaced. Additionally, assuming that the recording had some historical value, such as being one of only a few remaining copies of an album by Woody Guthrie, for instance, this fact should also be taken into account.

2. Fred Copyman makes a second copy of a CD that he owns to play on his car CD player. The CD is for his own private use. If he had not copied the CD, he would not have bought another copy from the record store to use in his car. He would have instead used the original and shuttled it between his car player and his home player.

The purpose of this use is convenience and its character is noncommercial. The nature of the copyrighted work is again a musical recording presumed to have more protection than straight reporting or less creative works. The whole of the work has been copied. What is the effect of this use on the potential market for or value of the work? Since Copyman would not have bought another copy for his car, there is no effect on the potential market or the value of the work.

3. Copyman makes a "party" disc, containing 10 separate copyrighted audio tracks that he has extracted from 10 different CDs that he owns. The CD is for his own private use.

Again, applying the fair use analysis, the purpose of the use is convenience and the use is noncommercial. Copyman could have obtained the same effect by inserting the 10 source CDs into an Audio CD changer and programming it to play the 10 tracks that he chose for his disc. The nature of the copyrighted work is that it is 10 different copyrighted musical works, presumed to be more protected than certain other copyrighted material. The amount and substantiality of the portion used in relation to the copyrighted work as a whole is a calculable number that consists of the total length of each disc in minutes and seconds divided by the length of the extracted song. And the effect of the use on the potential market for the value of the work is none. This disc is not available from any source.

But let's change the scenario a little bit. Party discs are available for purchase. Companies like Custom Revolutions of Stamford, Connecticut specialize in creating custom CDs for their customers. Assuming that they had all the songs available in their licensed library, they could have made the disc for Copyman and would have paid royalties back to the record companies for each song they recorded onto the disc. Does the fact that Copyman could have purchased the disc that he made make a difference? It seems to, since there is indeed an effect on the potential market for the music contained on the disc and the value of the work. By making the disc himself, Copyman does not purchase the custom disc and the record companies do not get royalties for these 10 songs. Since Custom Revolutions has already licensed all of its offered content from the record companies, the discs that they produce are free of the copyright questions that may be raised in the home recording arena.

For further information on audio copying and and other CD and DVD issues please visit The Compact Disc Homepage.

Robert A. Starrett is a Contributing Editor and columnist (The CD Writer) for Emedia Professional magazine (formerly CD-ROM Professional) and an independent CD-ROM, CD Audio and CD-R consultant and writer based in Denver, Colorado. He has been involved in CD-ROM and CD-R technology since 1988. In 1989, he produced the Colorado Revised Statutes on CD-ROM, the first state statute disc ever produced, and one of the first legal CD-ROM applications in the United States. He has extensive experience with not only CD-ROM and CD-R, but other optical storage devices such as WORM, MO, PD and other storage technologies. He is the author of several software packages for law office automation.



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