[macFanDave]

I am not interested in using snippets of pre-recorded music as ringtones on my iPhone. That's why I resent having to be a hacker to put sounds I record personally on my phone.
Trust me, hearing your own voice as a ringtone is quite jarring. I want to record my friends and family and use their voices as their personal ringtones. I am just going to have to play cat-and-mouse with Apple at every "upgrade." By the way, I am the mouse!

[technolawyer]

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Worst article on copyright issues I have seen.

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foolishpuck , nice work on pointing out those errors. I got the sense that the article was run by a lawyer, but not written by one. There's no byline though so that's just a guess. What the author probably meant is that while the statute contains a fair use provision, the four-pronged test is not a bright line rule. Lots of room for interpretation exists. Regarding the ringtone issue, you really need to see what the case law provides on related issues if indeed no court has issued an opinion on ringtones. Notwithstanding the errors, an enjoyable article and fun debate.

[Terrin]

Like I said your problem is your brainwashed. Congress didn't draft this law, the industry did. Moreover, they did it before the Internet was as big as it is today. The industry includes not only the labels but also hardware companies like Sony who wanted to be able to sell CD burners without fear of liability. Congress also didn't want consumers to be held liable for sharing legally purchased songs. The industry likely thought consumers would buy blank music CDs to burn CDs, which the tax would cover the copying. The fact that most people don't is irrelevant.
I gave you the relevant Section of the Copyright Act. It states pretty clearly that consumers will not be held liable for noncommercial copying of digital content. It has always been acceptable fair-use to privately share music with friends. Moreover, I gave you the opinion of a copyright professor who actually participated in the drafting of this Section of the Copyright Act. How many top copyright professors have you asked? I only know one, and that is what her position is. As far as I know nobody similarly situated disagrees.
As such, since you suggest there is disagreement, I challenge you to find me one intellectual property lawyer of note (e.g. not somebody who merely practices in the field) who is not a shill for the industry who publicly states otherwise. Truthfully, I haven't heard a shill state otherwise either, but shills can be paid to say anything.
It is perfectly legal for you to make a copy of a CD you legally have and give it away to a friend. This includes going to the library, taking out a CD, and burning it. It also includes borrowing a CD from a friend, and burning it.
I showed you the law that makes it legal, backed up with credible expert opinion, show me something that makes it illegal.
I will also say that a law professor would never intentionally make a claim as fact (as opposed to opinion) that arguably wasn't true in a publicly sold book. Doing so would open the person up to liability lawsuits.

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If every "top copyright professor" in the country was saying it, it might be more convincing. But there's much disagreement about this issue in the legal community.
On the other hand, it seems like basic common sense to me that there's a big difference between making copies for yourself and making copies to give to friends.

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[Wondercow]

Terrin,
In the other thread where this cam up I asked you a few times to cite legal precedent to support that claim. You have yet to offer proof. We've all heard that your professor, Jessica Litman, supports and furthers this theory, but you have yet to offer proof that either of you are correct. Further, in my searches of the web, the vast majority of sites cite her (or you - I found a couple other boards where you posted the same thing) and no one else.
It seems to me that you're willfully blind on this. You've taken her word as gospel because you want to believe it.

[Dan Frakes]

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Like I said your problem is your brainwashed.

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sigh I've always enjoyed the "you're brainwashed" approach to discussion.
What Wondercow said.

[Terrin]

The brainwashed comment wasn't meant as an insult, and if it was taken as one I apologize. Most people, however, incorrectly hold the same believe that you do. It is not their fault. The content industry has most people fooled into believing that you cannot do things that you really legally can. If not brainwashed, what else would you call that? It is interesting to note that Microsoft and Apple fund a joint lobbying effort designed to defend fair-use and specifically take issue with content providers brainwashing the masses by misstating the law.
http://www.defendfai....org/index.html
I am pressing the issue with you because you're the journalist. I backed my position up, but you sigh didn't offer to refute my position with anything other then your opinion. Instead, you dismiss my view by suggesting I insulted you.
Keep in mind you, not me, suggested that there is some big debate amongst legal scholars about the issue I raised. I've studied intellectual property for a couple of years, which hardly makes me an expert, however, I know of no such debate. I merely respectfully ask you to provide verification of this debate you suggest exists. I ask this for the benefit of you, your readers and myself. If no such debate exists, and you do not wish to do any further investigation of the issue, merely accept that what I suggest may very well be true.
I am merely trying to educate your readers of their rights.

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Like I said your problem is your brainwashed.

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sigh I've always enjoyed the "you're brainwashed" approach to discussion.
What Wondercow said.

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[cadin]

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A ringtone is not a small set of instructions that says play this tune from this point to that point that refers back to your original purchased music file.

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Why not? Or rather, why couldn't it be?
Your argument that seems to be that Apple is being forced to charge for ringtones because of the way Apple implemented the feature. If this were really the case, it would be trivial to change the implementation and circumvent the whole issue.

[Terrin]

If I didn't respond to you it is because I didn't read your post.
I already cited the relevant section, which is 1008. I already cited a noted copyright professor explaining the section for you. I already told you that you can go read the book Digital Copyright for more information on the topic. This book is sold in Borders, and I am sure Amazon sells it. I already told you that you can research the legislative history of the law, which is a pain in the butt to do, but if you have access to Westlaw or Lexus Nexus you can do it (I do not have such access). While you are using those resources, check out some law review articles on the topic. I am giving you all the information that you need to go research the issue further yourself. What more do you want, I gave you the law and an expert? At least offer me something to refute that what I suggest isn't true. I've given you far more then what you are given me to suggest what I am telling you isn't true.
Why doesn't MacWorld contact Litman, and ask her for more information on the topic? Ask her if there is debate on this issue. She may respond. Here is her website:
http://cgi2.www.law.umich.edu/[u]FacultyBioPage/facultybiopagenew.asp?ID=346

Here is a useful link of copyright resources she provides:

http://www-personal....ht/copyref.html

PS: I cannot give you legal precedent to support the claim. Precedent is based on courts deciding an issue. To my knowledge there have been no such lawsuits over this issue, so there would be no precedent. That can suggest quite a few things, including that what I tell you is true. In other words, no labels have sued anybody over this issue because they have no case.
Moreover you do not need precedent to determine if something is legal or not. Precedent merely is a confirmation by a court. If Congress approved a law today saying it is illegal to paint any car red, you wouldn't need a precedent to know painting a car red is illegal. Sure labels could sue you for doing what I suggest is legal, but you'd have a strong legal argument that it is in fact legal. That is the best you can hope for with any law. Labels also likely wouldn't bring such a suit to trial because they'd hate to lose it.

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Terrin,
In the other thread where this cam up I asked you a few times to cite legal precedent to support that claim. You have yet to offer proof. We've all heard that your professor, Jessica Litman, supports and furthers this theory, but you have yet to offer proof that either of you are correct. Further, in my searches of the web, the vast majority of sites cite her (or you - I found a couple other boards where you posted the same thing) and no one else.
It seems to me that you're willfully blind on this. You've taken her word as gospel because you want to believe it.

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[mac_the_knife]

I am a student of intellectual property too, and I have taken classes with Professor Litman (thereby getting the chance to clarify things by asking questions in an interactive environment, rather than simply reading Digital Copyright). I have a little different take on this than you do.
First off, any interpretation of a law and its application to a given pattern of conduct is, by definition, an opinion. In this sense, neither Professor Litman nor anyone else can couch a legal argument as "fact." I've borrowed a CD from the library and burned a copy for myself--that's a (hypothetical) fact. Whether sec. 1008 precludes my liability for copyright infringement--that's an opinion, no matter how you slice it. In fact, if I were hauled before a judge and s/he were to find me liable, that's an opinion too. The difference is, the judge's opinion has legal consequences (such as me being forced to pay XYZ Records a bunch of money, or not), while everyone else's opinion doesn't have such consequences.
Second, even Professor Litman herself acknowledges areas of disagreement about the scope of sec. 1008. In an interview, she opines why sec. 1008 should have covered Napster users to share music files noncommercially, but, she says, "I've not been able to find another copyright professor who agrees with me." See here. The court in the Napster litigation, held that filesharing is not covered under sec. 1008 because a computer is not a "digital audio recording device" or "medium" because it is not primarily used to make digital audio recordings (it holds your photos, spreadsheets, and other documents). (Both are opinions. So far, only one of them counts.) Also, in her classes Professor Litman acknowledges that there are disagreements not only over what counts as a "digital audio recording device" but also what counts as "noncommercial use." Some of your examples are clearly noncommercial. Others are in a gray area. Litman seems to think that whenever no money changes hands, the use is noncommercial. But since it's not defined anywhere in the law, and her argument has never been tested in a court of law (outside of Napster), the jury is still out on whether in fact she is "correct."
My personal opinion is that noncommercial use that is exempt from liability should be restricted to those uses that do not illegitimately take the place of what would otherwise have been a legitimate commercial transaction. (Yes, I know, "what is illegitimate and legitimate?" I'm still working on that. But for now, much like pornography, I know it when I see it.) So, for example, I don't believe sec. 1008 would cover filesharing, because a transfer of this type takes the place of a purchase through iTunes (whether or not that purchase would have actually occurred in that instance... don't get me started on "I wouldn't have bought it if it wasn't available for free). On the other hand, making a CD of stuff I already bought so that I can listen to it in my car should be protected by 1008. Some of the other uses you list are in a sort of gray area.
Where do ringtones fit in? I don't think it matters whether 1008 protects the making of ringtones. First off, there is the argument that a ringtone is a derivative work, and 1008 only exempts liability for reproduction. Second, there is a legitimate market for ringtones and therefore one could say that making your own ringtones is not noncommercial use (I think it's noncommercial, but whatever). However, I am of the opinion that creating a ringtone from a music file you legitimately purchased falls within fair use. I'm kind of disappointed at this article's treatment of fair use, because as an earlier poster mentioned, it is a part of the copyright law. I couldn't do a complete legal analysis of this because it would take too long, but in short, it's just a small portion of the copyrighted recording, and it's recontextualized in a way that I believe makes the use "transformative" enough to be protected under fair use.
This doesn't really hit the mark though, because the question is not whether I can make my own ringtone out of a track purchased through iTunes or whatever. The question is whether Apple can (or should) sell the ability to do this. In my opinion, there's nothing wrong with it. After all, there are many books that are in the public domain, from the Bible to Charles Dickens's works, that we can all freely copy, adapt into a movie, etc. But yet, if I go to a bookstore, I can see a whole bunch of these public domain works that are gasp for sale! They're charging me money, the nerve of them! But yet, there's no public uproar over me having to buy A Tale of Two Cities, even though I could freely (if I wanted to) go to a library, check it out, photocopy it, scan it, send it all over the web, etc.
I think that Apple's (and other companies') sale of ringtones is much like this. Sure, make your own ringtones if you want, and the law will likely let you do this. But that doesn't mean that Apple has a moral imperative to build this functionality into iTunes or the iPhone for free. I personally make my own ringtones on occasion by burning my iTunes purchased tracks, re-ripping the selection I want in low-quality mp3, and transferring them via bluetooth to my RAZR which can play them. Apple's provided an alternative mechanism which in the end may or may not be more convenient or worth the price they're charging. But the market will decide this. I don't see what all the fuss is about.

[nyip11]

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Like I said your problem is your brainwashed.

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sigh I've always enjoyed the "you're brainwashed" approach to discussion.

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I wonder who's the one who's brainwashed. /forums/ubbthreads/images/graemlins/wink.gif

[Dan Frakes]

Terrin, let's drop the whole "brainwashed" BS. Reasonable people can have different interpretations of the law without being "brainwashed" by the recording industry. And making comments to the effect of "Any lawyer who disagrees has been bought off" make it seem as if you're just desperate to find some justification for your own behavior, and refuse to believe any evidence to the contrary. If you want to discuss, then discuss. (And if you really think I'm "brainwashed" by the music industry, you're clearly not reading my other articles here on Macworld.)

As for your particular interpretation of copyright, there's nothing in copyright law or fair-use exceptions that says you can copy a CD and give it to a friend. In fact, Section 106 of U.S. copyright law appears to specifically prohibit it:
"The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:...(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."
Making a copy of a CD and giving it to a friend is -- and I don't see how anyone, professor or not, can honestly argue otherwise -- distributing it. (There's nothing that requires the distribution be commercial.)
Of course, the Audio Home Recording Act of 1992 allows for some exceptions; for example, it says you can't be prosecuted for the non-commercial recording, for personal use, of something you've purchased. But there are two problems with using the AHRA as justification for copying CDs and giving them away. First, the AHRA was passed to prevent people from being prosecuted for private use -- in other words, for copying content you've purchased in order to use in other formats yourself. It doesn't give you an exception to make copies for other people. Second, many people read the term "non-commercial" too narrowly, claiming that if they aren't charging for the copy, it's not commercial. But that ignores the other side of the equation: if you give someone a copy of a CD so they don't have to buy it, you're interfering with a potential commercial transaction. Many people believe that makes such an act commercial.
A quick Google search will give you plenty of opinions, legal and policy-wise, with similar interpretations -- even among people who don't agree with the law and want to specifically change it to permit such use. (I think the fact that your professor believes that Section 1008 also allows P2P file sharing of music -- and admits herself that not a single other copyright professor agrees with her -- shows that she's at one extreme of this issue.)

But all this focuses on the legal and copyright issues. As someone who's written books, and has friends who've made music albums, I have a hard time understanding how anyone can personally justify making a copy of a CD/book/video and giving it to a friend, and then claiming there's nothing wrong with that.

[Wondercow]

If I didn't respond to you it is because I didn't read your post
Previous thread here. You replied to some of my posts but, in one post at least, ignored my call for proof.

I already cited the relevant section, which is 1008. I already cited a noted copyright professor explaining the section for you. <snip> What more do you want, I gave you the law and an expert? At least offer me something to refute that what I suggest isn't true. I've given you far more then what you are given me to suggest what I am telling you isn't true.

What you've given us is inadequate. You cite ONE person - one person whom you hold in high regard, almost to the point of idolization. But what you seem to ignore is that she could be wrong, that just because she says it's so doesn't make it so. You have no one to bolster her claim, and you have no precedent (and yes, thank you, I know what precedent is) to give credence to your theory. The reason I ask for precedent is that the written law - which you have provided for us, but again, it is inadequate - is almost always debatable until a legal decision has been made by a judge (or a panel thereof). It's the interpretation of the written law that matters. As a legal scholar, I'd think that you'd recognise that. There have been countless cases in all legal systems (especially those based on the English system, such as our two) where the written law has been deemed illegal, unconstitutional, too broad, too narrow, etc., yet you hold to an untested theory put forth by one single person.

And let's not ignore section 1001. To quote myself from the previous thread:

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Section 1001 defines (with two exception, neither of which apply):

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A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use -emphasis mine

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If you give it away, it's not really private. At best this would seem to fall in line with Canada's policy whereby an individual may make a copy for his or her own use, but may not give it away.

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This L.A. Times article contradicts your opinion.
Perhaps you're too awash in the "greatness" of your professor to think critically; perhaps it is you who is brainwashed.

[satan]

Excellent article. I'm always amazed at how many people are upset over copyright without first understanding how and why it works.

[DarrenForbes]

Hi
I'm just trying to get my head around this potential ability to make and give away copies of CDs.
I am not a lawyer but am intrigued by the possibility. If it is true then it looks like the music industry should fall apart.
Pretend that I am a US Citizen living and acting in the USA.
Assuming that you are correct that I can give away copies of CD I own to my friend Bob. Bob now owns the media; I gave it him. Is he allowed to use it; that is play it in a CD player? Does he require a licence of any kind to play it and if so in what way did he obtain the licence? Did I grant it him? Do I have this ability? Does he obtain it automatically because he has a copy of the music? Does he break any laws if he plays the CD?
I ask this because my DVDs tell me that I am licensed to do only certain thing with them and I assume I gained these abilities when I bought them. ITunes also appears to grant me licences to the material. Are CD's similar in that respect or does ownership of the physical object grant me a licence to use the material?
If no licence is required then let the mass copying begin! (Not for us British though. Technically we are breaking copyright laws by uploading CD's to iTunes or so I have read. Uk lawyers please tell me differently.)