Copying music to CD: the right, the wrong, and the law

Emedia Professional, Feb, 1998 by Robert A. Starrett

Reporting on CD-Recordable electronic media in general becomes more like studying for a law exam every day. On the surface, the issue of what type of CD-R usage constitutes copyright violations seems a simple one: copying discs containing copyrighted material, such as commercial audio CDs, for re-distribution and sale constitutes piracy, and clearly represents a breach of the copyright holder's right to protect his or her work.

But what about using CD-R to copy, say, a favorite audio CD, or compiling tracks from various discs in a user's private collection for an enhanced individual listening experience? What are the copyright issues in that case? What constitutes a consumer's "fair use" of copyrighted material that he or she has purchased legally? And how significant does such an issue become when the widespread availability of copying capable tools and the newfound cheapness of CD recorders makes the technology accessible to a potential mass audience with exactly such aims in mind?

Determining what the United States Copyright Act has to say about using CD-R in a "home-taping"-type context requires research, interpretation, and time; what's clear right now, however, is that the proliferation of new tools that make copying audio to CD an end-user-friendly process has got the record industry on the run. The release of Adaptec's Spin Doctor and Jam, and CeQuadrat's Just Music, and Elektroson's GEAR Audio gives the user solid, audiospecific tools for making "greatest hits" or "party discs" from their own collections for private use. The new tools also give those who don't respect the rights of music copyright holders new opportunities to create "pirate" discs for subterranean sale or gift-giving that deprive those copyright holders of deserved royalties.

While no one will deny that some people borrow and copy music from others and few will argue against the rights of artists and record companies to make money from the materials that they produce, the majority of disc copying is done by individuals who want to have a convenient mix of songs on a single disc, extracted from CDs, tapes, or LPs that they already own. But if there are laws, rules, guidelines, or ethical considerations governing the copying of music--even for private use--few users are aware of what those laws are and how they can or should be applied.

What is right and what is wrong.? What types of copying are permissible and what are not? The answer--no surprise--depends on who you ask.

THE RIAA VERSUS THE AHRA: A HOME-DUPING SPLIT DECISION

The Recording Industry Association of America (RIAA) is a trade association whose member companies create, manufacture, and/or distribute approximately 90 percent of all legitimate sound recordings produced and sold in the United States. The association's 250 members include such familiar record companies as Warner Brothers Records, Columbia, Motown, RCA, Geffen, and Capitol, as well as many lesser-known record labels. The RIAA was founded in 1952 and among the items in its stated mission is the promotion of strong intellectual property protection and the prevention of music piracy.

According to Cary Sherman, the senior executive vice president and general counsel, the RIAA takes the position that any copying of music to CD that you perform on your computer is copyright infringement. Whether the source is digital or analog, whether the disc is a complete copy of a CD, tape, or LP that you own, or whether it is a compilation of songs from various sources that you own, the RIAA considers making such a copy to be a violation of the right of reproduction granted to copyright holders by the Copyright Act of 1976. They also recognize, however, that Section 1008 of the Audio Home Recording Act (AHRA) of 1992 gives those who perform such copying immunity from copyright infringement actions, provided that the copying is performed on a digital audio copying device as defined by the AHRA The RIAA's ultimate goal is to require CDR and CD-RW hardware manufacturers to look at the copy-protection bit on an audio disc and refuse to copy if that bit is set to "on."

Unhappy with the amount of royalties that are returned to the music industry under the AHRA and the implications of more widely available audio CD recording, the RIAA has criticized Philips' plans to introduce a CD-Rewritable (CD-RW) home audio recorder. The new drive has been designed entirely in compliance with the AHRA, returning a royalty to music copyright holders on each recorder and disc sold and implementing the Serial Copy Management System (SCMS) on each disc recorded, which switches "on" a copy-protect bit on a burned CD copy that prevents users from copying that copy. Philips has in fact gone even farther than the AHRA requires and included a CD fingerprint system that identifies the particular machine on which each digital recording is made. Still, the RIAA has argued that home CD-RW drives raise fresh concerns not addressed in the AHRA. Home recorders like the forthcoming Philips model, the RIAA says, "will add a new dimension to and further aggravate the already very serious problem of CD piracy by facilitating a cottage industry."