What the heck is "fair use," anyway?

Check out this juicy tidbit from the Electronic Frontier Foundation:

RIAA Says Ripping CDs to Your iPod is NOT Fair Use

Yup, you read that right. The RIAA apparently has some reservations about about the format-shifting involved in ripping a CD to your MP3 player. Or in backing up a music CD. Did they miss the giant backlash when Sony tried to control what the end-user does with their product? (See CNet for details, and Boing Boing for a timeline.)

I find this annoying. I understand that the RIAA is trying to protect their interests. But I think it’s clear that MP3 players are not a passing fad. They are here to stay. I have a fair amount of CDs, and for me the whole point of buying my iPod was so I could listen to that music while I was out and about, and not have to cart around a little folder of CDs, and go through the process of changing discs whenever one ended. (Have you ever tried to change CDs on a crowded bus? While one hand is occupied by your coffee cup? Yeah.) At this point, when I’m listening to music it’s via my iPod — I rarely listen to CDs at home anymore (mostly NPR). Why then, would I want to purchase a CD if I could not add it to my iPod without fear of destroying my computer or having men in black suits come to my apartment and take me away?

Anyway, they argue that taking a CD and ripping the files to your MP3 player is not necessarily fair use. But what’s “fair use?” I found this definition on a Yale website called “Licensing Digital Information: A Reference for Librarians.” So fair use is:

The right set forth in Section 107 of the United States Copyright Act, to use copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 sets out four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Now, I’m not a copyright attorney and I don’t know any more about this than what I’ve cited above. But it seems to me that this sort of thing falls under the fourth factor — the fact that I have ripped the songs from most of my CDs onto my iPod does not impact the value of that work. I paid for the CD! Everybody got their money from me.

The tricky part comes in because I could share those files with other people who would *maybe* have bought the songs before I passed them along for free. Free-for-all style music sharing does impact the market — if you can get all the music you’d ever want to listen to on the Internet for free, why would you go out and buy CDs? Some people wouldn’t. But other people would — they’d use the availability of the music to sample new bands, and then go buy the albums to support the bands they like. This is not a new argument. But I agree, mainly because I am wary of spending anywhere from $13 to $18 to purchase a CD when I don’t know the artist. (I’m wary sometimes when I do know the artist!) If I don’t like the album, it’s a waste of money.

It just boggles my mind that these guys are spending so much time and energy fighting the “digital music revolution” or whatever you want to call it. I have no reasearch to back this up, but I bet digital music is the way most consumers in my age bracket (and aren’t we the coveted age bracket?) want to go. Embrace it! Stop spending your money on litigation, accept that there will inevitably be some amount of piracy, and get with the program. Swallow your pride and go through an established vendor, or set up your own store. I don’t care. Just don’t try to tell me that taking a CD I bought and putting the songs on my iPod for my own personal enjoyment (or making a backup CD of songs I bought in digital format to begin with) is not fair use.

This also makes me mad because it’s another obstacle to more libraries embracing and developing innovative programs like the South Huntington Public Library’s Books on iPod service. They also offer about 50 albums through this service. It’s such a great service, in so many ways, but these sorts of issues will make libraries that are trying to start up this sort of think stop and think, and maybe decide not to do it at all. And that’s sad.

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One thought on “What the heck is "fair use," anyway?

  1. As I’ve heard many times, any business plan that is based on suing your customers isn’t a good business plan.

    The movie companies were against the advent of the VCR. Now, rentals and purchases for home use (albeit, on DVD) are their prime revenue source.

    Copyright is dead. I’m just curious to see what will replace it.

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