The RIAA at La Grange (aka Mitch Bainwol Left Chicago)

August 14, 2006 10:30 AM

I own a copy of Tres Hombres by ZZ Top. I'd like to get it into mp3 format so that I can listen to it in the car, etc. The problem is that the copy I own is on a record. Assuming I download with bittorrent, and then the RIAA comes after me, can I use the defense that I actually already owned it, so downloading could not be considered criminal? Would it be different if I owned a record rather than a CD? In other words, can you legally download the mp3 of an album you already own?
posted by joecacti to law & government (16 comments total)

Assuming I download with bittorrent, and then the RIAA comes after me, can I use the defense that I actually already owned it, so downloading could not be considered criminal?

Using bittorrent, which is designed to upload as well as download, shows intent to distribute, which is illegal if you don't have some kind of agreement with the copyright holder.
posted by PinkStainlessTail at 10:34 AM on August 14, 2006

Copyright implies control over copying. I doubt that the version you would download would be an officially authorized copy, and would be in violation of copyright, regardless of whether you already own a copy or not.

One might also say that you bought the rights to own a physical copy, NOT a digital copy (especially if you bought it when there were no digital copies). In effect you want an entirely new product without having to pay for it.
posted by blue_beetle at 10:49 AM on August 14, 2006

OK, let's take out the bittorrent factor. Assume I download with a client that cannot upload.

And let's remove the digital factor. Assume I purchased Tres Hombres last year - on CD.

And just for fun, let's add a food factor. Assume I'm eating a pretzel.
posted by joecacti at 10:54 AM on August 14, 2006

IANAL. Your first point, using a client that cannot upload, I don't think has been tested in court yet. Good luck proving such a thing in court.

The second point is irrelevant. The RIAA's position is that the value in downloading an unlicensed copy of a song is equivalent to the value of the distribution rights of a song, because it can be uploaded without restriction. The US Copyright Act says they can sue for damages of $750-30,000 PER SONG. And that's just for downloading. Of course, it usually gets settled for much less per song.

Your third point has made me hungry.

In my opinion the RIAA would never pursue a case against someone for just one song, but you never know.
posted by empyrean at 11:02 AM on August 14, 2006

Oh, I forgot. If they can prove WILLFUL infringement, the maximum per violation is $150,000 PER SONG. Good stuff.
posted by empyrean at 11:04 AM on August 14, 2006

If you have the physical media and they can't prove without a doubt that you didn't encode it yourself, then there's NO case.

If, on the other hand, they can prove that you didn't encode and that you did, in fact, download it....well... any sane judge should throw the case out on it's ass...assuming you don't throw out the vinyl.

Don't choke on the pretzel.
posted by jaded at 11:05 AM on August 14, 2006

I don't think that you signed a contract anywhere that said you only have the rights to listen to the song, for which the artists has been paid the royalty from your purchase, in the format in which you purchased it. Just do it already. In the highly unlikely event your ISP gets subpoenaed and gives up your name and you get sued, you can always claim that they can't prove it was you that downloaded it. The recording industry just hasn't figured out what to do with the whole digital thing yet, unfortunately. Fortunately, we don't have to wait on them.
posted by Mr. Gunn at 11:08 AM on August 14, 2006

This is my big gripe about the RIAA. I purchased a license to listen to that music. in fact in some cases four times (8-track, cassette, Vinyl, CD) If someone else has gone through the trouble of converting it into an Mp3 or whatever Why shouldn't I be able to exercize my license and copy that mp3? I have the right of fair use, and I wouldn't be stealing something I don't already own.
posted by Gungho at 11:34 AM on August 14, 2006

OK, let's take out the bittorrent factor. Assume I download with a client that cannot upload.

You mean like downloading from a newsgroup.

In that case, how is the RIAA going to find out? The only transfer is from the ISP's or usenet service's machine to yours, unlike p2p systems that broadcast the fact that you're sharing the file to all and sundry.
posted by ROU_Xenophobe at 12:03 PM on August 14, 2006

> I purchased a license to listen to that music.

No you didn't.

Or, at least, not yet. You purchased ownership of a piece of media on which a copyrighted program was encoded.

You own the media, and you have first-sale rights to *sell that media* to someone else, or rent, loan, etc, it.

You can, I'm fairly certain, make space/type-shifting copies for your own personal use under case-law extensions to Fair Use, as long as you don't keep any of these after you sell the original medium, and you don't utilise them commercially (some people would say that you can't even make a single backup and use that commercially but IANAL think they're incorrectly reading the statute).

Ironically, the RIAA wants, I'm told, to change the law so that you *are* purchasing a license.

Let's let them; this sort of thing would then be explciitly legal.
posted by baylink at 12:05 PM on August 14, 2006

I don't know if you're breaking the law, but the place you're downloading it from probably is. A few years back, a service called My MP3.com allowed you to download MP3 copies of CDs you already owned. They required you to insert the CD in your computer, in order to prove that you owned it, but they still got sued out of existence.
posted by fuzz at 12:12 PM on August 14, 2006

I've ripped many albums to mp3, and if the record is in good shape, it sounds pretty good. You need a phonograph and preamp (or DJ mixer) going to your sound card aux input. This has been talked about several times here. Some kind of WAV editing software is good to have, too.
posted by rfs at 12:24 PM on August 14, 2006

Used copies of Tres Hombres on CD are available on Half.com and Amazon starting at $4.50. While the chances of being sued for downloading this album are small indeed, I'd say $4.50 + shipping is a small price to pay for peace of mind.
posted by Crotalus at 1:07 PM on August 14, 2006

ahem. a true zz fan would buy the 'zz top six pack'--their first 6 albums on 3 cds, as they were significantly improved through remixing.
posted by lester at 1:14 PM on August 14, 2006

As a true ZZ Top fan, I must take issue with lester: the remastering on the "six pack" is notoriously dreadful, actually. (The negative reviews on amazon's page for this box set are pretty much spot-on.) If you're going to just buy the album on CD, you're way better off buying it - and the others - individually. And, yeah. $4.50 is a very fair price for this great album.

I've also heard that the remastering on this box set is pretty good, but haven't heard it, myself.

If my copy of Tres Hombres didn't happen to be in a storage unit right ow, I'd just burn a CD copy of it and send it to you. If it weren't illegal to do so, of course.
posted by Dr. Wu at 1:26 PM on August 14, 2006 [1 favorite has favorites]

I think the answer is: "We don't have enough legal precedent yet, and you should feel free to assist in setting that precedent by being sued."
posted by blue_beetle at 4:26 PM on August 14, 2006