Loading CDs into iPods
p2p news / p2pnet: In a recent blog, Michael Geist suggested that, "the private copying right doesn’t cover copying CDs to Apple iPods".
This is one interpretation of the federal court decision (2004 FCA 424) which in part discussed whether there should be a levy on the storage media embedded in devices like an iPod. The Supreme Court dismissed an application to hear an appeal of this decision.
The court discussed the connection between the definition of "audio recording medium" and the question of infringement.
[147] Although the CPCC maintains that the meaning of "audio recording medium" as defined in section 79 has no infringement implications, this is not so. If, indeed, digital audio recorders (or the memories embedded therein) fall outside the scope of the definition, copyright infringement could result from the use of such devices to private copy. Consistent with the proposition set forth in the above passage, the decision of the Board must be tested against the standard of correctness.
Section 80 of our Copyright Act specifies that the private copy must be to an "audio recording media". The lack of a levy on any specific audio recording media does not mean that it is not an audio recording media.
When discussing the term "audio recording media" the court said:
[139] The Board’s exact reasoning for holding that memory permanently embedded in a digital audio recorder was levyable rests on the above quoted definition of an "audio recording medium". The Board said (Private Copying III, p. 33):
There are two aspects of [the definition] that are relevant to the Board in these proceedings. The first relates to the proper interpretation of the phrase "ordinarily used by individual consumers for that purpose". The second relates to the relevance of a medium’s physical attributes ("a recording medium, regardless of its material form"), particularly the significance of its incorporation into a device.
The court clarified that it is this second question, and not the first, that is under contention.
Clearly it is possible to store audio in the media embedded within a portable device. While it may not be a levyable media, this does not excludes it as a valid destination for private copies of audio recordings.
If these are not private copies, are they regulated copies?
I believe we must go beyond asking whether the memory in devices are an "audio recording media", but to also ask whether any storage within devices are "copies" that are regulated under the act.
There is an assumption in the legal community that all electronic copies, whether in temporary (RAM) or permanent (Disk) memory within a device, are regulated copies requiring explicit permission from the copyright holder. This assumption must be examined and clarified both by the courts and by parliaments.
I believe that any "copy" that may exist within a device, whether permanent or temporary, should not be regulated by copyright. It is appropriate to make any communication to such a device a regulated act (whether reading from a tangible recording media or communication by telecommunications), but any copying within a device should be unregulated.
This understanding of the limit of regulated copies is necessary to clarify the legality of the regular functioning of these devices. We have never considered the communication of music over speaker wires (or within an analog stereo) to be regulated, and in the same way we should not consider copies within digital devices as regulated by copyright.
As far as I know, this critically important legal question has not been clarified by either the courts of by parliament. In order to avoid nonsense court decisions, or a chill on the creation and use of digital technology, we must clarify this situation.
Time to talk to your MP
I believe it is helpful to remind people of this important political debate around how technology should be regulated. People should be encouraged to write to their MP, especially the Conservative MPs who may be interested to follow through with their policy which stated that, "A Conservative Government will eliminate the levy on blank recording materials."
The need for intervention by parliament was also discussed by the federal court:
[164] In my respectful view, it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied under Part VIII. As Part VIII now reads, there is no authority for certifying a levy on such devices or the memory embedded therein.
Russell McOrmond – p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons).]
February 27th, 2006 at 8:06 pm
The MP3 file has roots in the digital storage ground. Its design is to provide a quality experience while using less memory space. If copyright is to cover the content then should it not first be a consideration of the initial form of the content to establish the intent of the author? Converting to MP3 could be a copyright violation as it might show an act against an author’s intent to create a convenient and easily portable stored work. If an author “markets” an MP3 file he may very well demonstrate an intent to enter into a form that was designed for the specific purpose of portability, transmitting and storing economically. Now converting audio CD to MP3 may not be a mere duplication but actually considered a copy through which original intent is altered. Copying an audio CD to maintain content if the delivery device itself is damaged is one thing. Converting it into another form defining a different delivery device with different acceptable public uses could be the issue in loading up an MP3 player with content. Now if an author sells or produces to the public MP3 content there would have to be a new world order agreed to whereby the author is automatically and specifically demonstrating a continued claim to his copyright in light of the fact he is distributing his work in a form that may very well have been created, used and embedded in devices for the sole purpose of portability, transmission and economical storage found in these devices used specifically for duplication and maintenance of dynamic content.
In short, one could say that if an author has sold an MP3 file anywhere he just sold a bit of work into mass duplication. Do we need a file storage format joined with delivery devices that clearly define the no duplication intent from the initial inception of the work? Many authors try to profit off existing technology and attempt to rewrite the history of the technology to fit their purposes. It may now be the time to create one’s own technology to support one’s purpose rather than violate the copyright of the original authors of the technology now in current public use.
I suggest the “industry” come up with its own file format, say *.profit, and have that publically accepted as a file not to be converted, copied, duplicated and whatever stored and played only on their delivery device that is licensed to support *.profit files. There will therefore never exist the hybridization of intent.
February 27th, 2006 at 11:00 pm
Copyright has never concerned itself with the quality of playback equipment or media in the past, so why should this radical expansion of the scope of copyright be allowed or suggested now?
If I purchase music, I should be able to use it on whatever equipment I own. If that means taking the vinyl record and playing it on a low quality record player with only a single speaker, then that is my choice. This doesn’t affect either the moral or material rights of the author.
If I have a high-quality turntable and convert this to a lower quality CD to play in another room, then that is also my personal choice — and not one that the copyright holder should have any say in.
If someone takes a higher quality recording (vinyl, CD, whatever) and converts to a lower quality CD so they can listen to it with a portable audio player, this too is none of the business of the copyright holder.
You also are incorrect on the origins of the Motion Picture Experts Group (MPEG) 2 layer 3 audio (Short form: MP3) which is from the professional motion picture industry.
It is extremely wrong to suggest that if a specific quality of recording is made available (MP3 or whatever) that it is authorized to be shared.
There ARE NO DIFFERENT ACCEPTABLE PUBLIC USES that are based on the media format.
This is as much nonsense as suggesting that if an 8-track was made available in the past (also lower quality than CD) that this constitutes a suggestion that it was “intended to be shared”. This idea is utter nonsense, and must be as forcefully rejected as the equally offensive idea of perpetual copyright.
The form that a recording takes has no bearing whatsoever on copyright. Copyright is on the recording, not the specific format.
February 28th, 2006 at 2:09 pm
So, were not allowed to copy our cd’s onto our mp3 players…..
Just watch them try and stop me!!
ha ha ha ha