A Legit Music Collection

July 18, 2006 4:09 AM

Straight up: Is it legal for me to loan a CD to a friend so that he can copy it for his own use?

I've heard a zillion arguments about "fair use" and "personal use" and what is legal and what is not. I'm trying to find the straight dope. Thank you.

posted by DWRoelands to Law & Government (29 answers total)

No.
posted by Jimbob at 4:31 AM on July 18, 2006

(Unless the CD is of your band, or something, in which case you own the copyright and you can do whatever you please with it. In every other case...no.)
posted by Jimbob at 4:32 AM on July 18, 2006

What Jimbob said.
posted by pmurray63 at 4:49 AM on July 18, 2006

Best answer: "Fair use/personal use" is intended only for the licensee, not a 3rd party. This is one reason why the RIAA is after filesharers, your example and filesharing are practically the same thing except the blame shifts from the copier to the sharer.
posted by a. at 4:52 AM on July 18, 2006

Doesn't the situation described above entail two separate actions, one of which is legal, one of which is not?

That is, I think that it's legal for me to loan a CD to a friend, but not legal for my friend to copy the CD for his own use.
posted by Prospero at 5:07 AM on July 18, 2006

its illegal. copy it yourself and slip him a copy.
posted by Davaal at 5:11 AM on July 18, 2006

It is illegal for you friend to copy it unless he holds the copyright or has a license from the copyright holder. You giving it to him, less so: you aren't directly doing something illegal (ie copying) but you may be knowingly aiding and abetting a crime.

If you didn't know they were going to copy it, your actions would be entirely legal. There is nothing wrong with gifting or selling a copyrighted item.

IANAL.
posted by polyglot at 5:14 AM on July 18, 2006

Ask the musician/s who recorded it for their opinion. Want to guess what they'll say? That's usually a good starting point for ethical guidelines - how would YOU feel if it were your work being tossed around?
posted by dbiedny at 5:24 AM on July 18, 2006

"
Ask the musician/s who recorded it for their opinion. Want to guess what they'll say? That's usually a good starting point for ethical guidelines - how would YOU feel if it were your work being tossed around?" (dbiedny)

Actually, a surprising amount of musicians really don't mind music sharing - many even encourage it. It's the record labels that aren't so friendly toward this type of action.

Any musician that makes music for the love of music is incredibly appreciative of their fans. Not just because they buy their albums, but because they really love their music. If they distribute more albums via copying and filesharing they don't mind, because it gets them known and gets them more fans.

I'm not just talking out my arse here either, a LOT of bands feel this way. There's some sort of musician's coalition set up for the protection of filesharing actually, I can't remember the name right now but I can look it up.

But anyway, back on topic: I'd agree that there are two separate actions occurring; one of which is legal. It is perfectly acceptable for you to loan a CD to a friend. His copying that CD is not legal. However, if you knew in advance that he would copy it, that sort of negates that. It could fall into the category of conspiring...
posted by sprocket87 at 5:37 AM on July 18, 2006

copy it yourself and slip him a copy.

Also illegal ^
posted by thirteenkiller at 5:55 AM on July 18, 2006

Legal? No

Would I fret over the morality of an occasional unauthorized duplication of a CD? No...I've got bigger fish to fry.

BTW, those tags that say "do not remove under penalty of law?" I remove them. Cut them right off with my little scissors! Once you commit your first crime, the rest come easy! :>
posted by bim at 6:02 AM on July 18, 2006 [1 favorite]

What if I purchase a CD new, copy it, then sell the original and retain the copy? I purchased the license for the music, so the record company shouldn't have anything to complain about.
posted by electroboy at 6:13 AM on July 18, 2006

In Canada, yes.
posted by joeclark at 6:14 AM on July 18, 2006

"What if I purchase a CD new, copy it, then sell the original and retain the copy? I purchased the license for the music, so the record company shouldn't have anything to complain about."

Not sure on this one. The idea is that you are allowed to create a backup copy for yourself in case the original is lost or destroyed. But unless you can prove (receipts) that you purchased the original, then they can claim you copied them illegally. Then again, who keeps receipts for their entire CD collection...

I guess it's sort of moot since the RIAA doesn't go after people who burn CDs for each other, but large-scale p2p filesharers. It's basically a conscience issue - if you're okay with doing it then no one's gonna catch you.
posted by sprocket87 at 6:21 AM on July 18, 2006

Is it legal for me to loan a CD to a friend

Yes.

so that he can copy it for his own use?

I don't see that you have any liability if he chooses to copy it. It's not because I misunderstand the law; it's because I don't see the RIAA, record labels, or even artists putting the time and the effort into enforcing the law, never mind trying to bring down the entire chain of people involved in copying that CD.

If you're worried, don't share your CDs with people who are file sharers.

If you'd like to get around this and believe in fair use, don't let your friend borrow the CD - sell it to him, with a receipt. Then, if you believe in fair use, it's perfectly legal for him to copy. When he's done, just buy it back. Don't want to exchange money? Extend each other a line of credit for use in your used CD store. Of course, now you've got to worry about reporting your income to the IRS, but at least your not breaking the law.

But unless you can prove (receipts) that you purchased the original, then they can claim you copied them illegally.

That's not exactly how the law works. If the prosecution makes a claim you can not prove false, but they can not prove true, this doesn't automatically make you guilty of the accusations. Furthermore, if you keep simple, automated logs of your ripping and encoding, which any quality software will do with great ease, you can now refute the charges effectively.

It's a grey area of the law that I'm unsure has ever been prosecuted. The safe bet is that it is both unethical and illegal, but you're also unlikely to be caught or prosecuted for doing either.
posted by sequential at 6:30 AM on July 18, 2006

Of course, now you've got to worry about reporting your income to the IRS, but at least your not breaking the law.

Sorry for the double, but this doesn't jibe with my next paragraph. I meant to say, "at least your not clearly breaking the law.
posted by sequential at 6:32 AM on July 18, 2006

That's not exactly how the law works. If the prosecution makes a claim you can not prove false, but they can not prove true, this doesn't automatically make you guilty of the accusations. Furthermore, if you keep simple, automated logs of your ripping and encoding, which any quality software will do with great ease, you can now refute the charges effectively.

Yes, good point. As I was typing that I thought "well, technically it's 'innocent until proven guilty', not the other way around". However, I assumed the power of the RIAA's lawyer-army could persuade a conviction in spite of that ;)
posted by sprocket87 at 6:35 AM on July 18, 2006

The person copying is the one infringing. You are not copying. However, if you lend it specifically for purposes of allowing such copying then you may be liable for contributory infringement.
posted by caddis at 6:50 AM on July 18, 2006 [1 favorite]

Using a digital audio recording device (stand alone CD recorder upon which a royalty has been paid) and music CDRs (which also incorporate a royalty) is one way around this. It is still technically an infringement to use these to copy a CD but no legal action can be brought based upon their noncommercial use by consumers.
posted by caddis at 6:58 AM on July 18, 2006 [1 favorite]

If you're American read up on the Audio Home Recording Act.
posted by CrunchyFrog at 7:19 AM on July 18, 2006

joeclark writes "In Canada, yes."

Note that it is only legal this direction. It is not legal in Canada to make a copy for a friend. They must borrow your disk and then make a copy.

Do libraries in the US loan CDs?
posted by Mitheral at 7:37 AM on July 18, 2006

Mitheral: Do libraries in the US loan CDs?

Yes, and video media as well.

On the other hand, enforcement of single copies is cost prohibitive, which is one reason why the RIAA seeks to get its cut from technology and media producers rather than chase down everyone who makes a one-off mix-tape.
posted by KirkJobSluder at 7:50 AM on July 18, 2006

Response by poster: Wow, thank you for the many answers.

I'm not so much worried about avoiding prosecution, since I avoid filesharing networks and such. I'm more concerned/interested with the ethics and legality of it, since I'm endeavoring to make my entire music collection "legit".
posted by DWRoelands at 8:30 AM on July 18, 2006

Your friend making the copy is clearly unlawful duplication under copyright law. If you give it to him with that intent you share some degree of that guilt, both legally and ethically, though it doesn't make your collection any less legitimate. From the standpoint of ethics, it depends on your ethical position on copyright law. There are certainly those who argue both sides of the case. It sounds like you believe in the ethics of respecting copyright, at least for yourself... whether you extend that to the acts of others, and where you draw the line in terms of aiding them, is really down to your personal ethical choice.

As to the question of the legality of selling an original and keeping the copy, I've been wondering about this a lot, and my impression is that while it could at least be reasonably argued to violate the spirit of copyright law, there is nothing on the books that makes it explicitely illegal. From a pragmatic viewpoint, if you engage in filesharing and get prosecuted, you could be held liable for any song copy that you can't produce an original CD for... I recall reading about a recent case where, in response to a defense attorney's argument that the prosecution could not prove that all of the music files without attendant CDs on the defendant's computer were illegally sourced, the judge essentially put the burden of proof on the defendant.

I've been wondering about this more because lately I've been noticing a certain local used CD has been putting out TV advertisements that explicitely encourage you to buy used CDs, rip the tracks, and then take them back and resell them at the same store.
posted by nanojath at 8:59 AM on July 18, 2006

Eh, I've heard that when you sell a CD you have bought, you are technically suppose to remove ALL copies you own, digital or hard backup.

There is a difference between legal and ethical.
posted by edgeways at 10:43 AM on July 18, 2006

I'm more concerned/interested with the ethics and legality of it...

You might be seen as illegally distributing the material if you know that your friend intends to copy it. (IANAL)

Ethically, there are a number of complexities, including: Would your friend buy the record if you didn't loan it to him?; Would your friend know about the music if you didn't loan it to him?; Is the recording artist's ability to make their next record in doubt and/or contingent on your friend buying the record? To me, the ethical considerations are a factor of the real world consequences of the actions taken, and more music being made and heard by more people is much more important than wealthy middlemen getting even more money.
posted by Eothele at 11:43 AM on July 18, 2006

Let's be clear: the friend's actions violate *civil* copyright; aiding and abetting that isn't a crime.

I'm not anybody's lawyer.
posted by baylink at 5:33 PM on July 18, 2006

Civil or criminal, the lender still puts himself at risk (ignoring the almost infinitesimally small chance of actually being caught). Lending a CD for the express purpose of letting someone infringe by copying it has been held to be contributory infringement. As for crime, if you aid someone in their crime you can be charged with conspiracy. For it to be a crime the copying must be willful and an infringement of a copyrighted work and must either be for financial or personal gain, or exceed $1,000 in 180 days. If your friend trades you back CDs, or ballgame tickets or anything of value to you then you have gain. Otherwise you have to lend a lot of CDs in 180 days.
posted by caddis at 9:01 PM on July 18, 2006

This is a law that is set up to keep the corporate structure of the music business from their inevitable extinction. There isn't one singer/songwriter who wasn't inspired by music that they obtained illegally from friends in the form of a mixed tape or disc. The spirit of music is that it needs to be shared. The benefit of sharing good music is that the musician stands much more of a chance of gaining a wider audience and therefore continuing their dream. Too many great musicians are working in cubicles right now because they didn't fit the mold of what was popular at the time - a popularity fabricated by the music industry. Filesharing has helped many artists who don't appeal to a wide audience a chance to continue on.
posted by any major dude at 7:23 AM on July 19, 2006