[DarrenForbes]

AH.
I've just gone back a bit and read this and may have found part of the answer to the idea of a licence being required.

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You see, when you buy music you are buying a license to listen to the music yourself, not let the public share in the experience. That is why publicly assessable stores who buy CDs are not allowed to play this legally purchased music for customers without getting licensing rights first.

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So. Referring to my previous post. Where did Bob get his licence?

[Wondercow]

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.
Translation:
"Why do you argue with me? I copied and pasted one section of the law while ignoring definitions, previous sections, etc. Furthermore, the only person worthy of my esteem agrees with me, which is good enough for me - so why isn't it good enough for you? I'd also like to ignore the fact that she herself acquiesced 'I've not been able to find another copyright professor who agrees with me'."

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.

Translation:
"I'm willing to accept that I may be wrong, but only if you can find a lawyer who meets my standards and isn't paid off. But since I won't tell you what my unrealistically-high standards are and since I reserve the right to claim that everyone's opinion is for-profit, you may as well just bring me a leprechaun riding side-saddle on a unicorn announcing the coming world peace."
[Edit]
I see some others beat me to section 106 and Litman's admission that she's all alone in her theory

[blecch]

Does anyone else think it's odd that Apple encourages you to burn entire mix CDs for free with iTunes (and, presumably, give them to your friends) but wants you to pay to make ringtones, and doesn't even provide a means of making ringtones of music you recorded yourself with GarageBand?

[blecch]

Wow, Wondercrow, you're really beating up Terrin quite a bit.
Let's see: Engadget, Prof. Litman (and others) and law student mactheknife all seem to think that ringtones are OK. Apple encourages the creation of mix CDs (even with music from the iTunes store), by providing the functionality to do so in iTunes.
I'd say that the original article isn't authoritative on any of these subjects, and its overall tone seems rather disapproving of many of the activities that Apple promotes: ripping music into iTunes, copying it to your iPod, burning mix CDs for your friends, using it as background music for your iPhoto slide shows, etc..

[Terrin]

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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.

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If you wanted legal advice, you would go to a lawyer. If the lawyer told you something was legal, you probably would accept that it is legal <b> especially </b> if that lawyer was a noted expert in that field. Of course, she could be wrong, I do not deny that. Anytime you do anything thinking it is legal, it could later turn out to be illegal even if you are operating under precedent. Fact is courts, reverse themselves all the time, and other times simply get it wrong. All you have when trying to figure out if a complex law makes something legal absent a court decision are 1) what the law says, 2) the legislative history of the law, 3) the content of other laws, and 4) expert views on a law. Here Litman, actually was an observer when the law was passed, so yes I give her view a weight I might not give just anybody.
Moreover, the only person I idolize is my deceased mother figure, but I do highly respect Litman's reading of the law because I know she doesn't say things lightly. Moreover, take all the factors combined: the reading of the law, the tax on blank music CDs, the time the law was passed. These factors suggest the view is a very reasonable interpretation of the law. That is all you can ask of any lawyer absent any lawyer.

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And let's not ignore section 1001. To quote myself from the previous thread:
Section 1001 defines (with two exception, neither of which apply):
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.
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.
Perhaps you're too awash in the "greatness" of your professor to think critically; perhaps it is you who is brainwashed.

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LOL. Think critically? What have you given me? You haven't defended your view. Instead, you insult me and merely adopt the view the labels doubtlessly would advocate. You define "digital audio recording device", but forget to define the relevant part: namely what does "private use" mean? I can tell you it doesn't have a standard meaning. Without killing myself to explain the different meanings, this article talks about it a bit:
http://books.google....SrPVGhdXhQ#PPA6,M1
You also aren't giving me an legal professional who refutes Litman's view. RIAA lawyers do not count because they are paid to take a particular position. However, I haven't even heard an RIAA lawyer take on this issue, so if you can find one of those, please post it here. You want me to defend my view, and I have. You aren't providing any defense for your view.

[cfromberg]

how can it be that when you already own the music you hav eto pay again to use it on yuor cell phone...???
i can trasnfer the music in full length to my cell, mp3 player or whatever medium, burn it to DVD or CD... but i have to pay extra or even more than the whole song in order to have it as a ring tone??? sounds like rip off to me... i wonder when the first law suit will clear things up a little...
i can under stand that if you want to use a track you own for personal use has to be licensed if you want to use it for a commercial or video you want to show in public... but a ring tone??? c'mon... the music industry hasn't learned @ single bit from the past... those who pay now will one day find out they were ripped off...
for my part i would never spend money on this rip off...
nuff said...
my 2 cents

[Deano1964]

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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.

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Alright, Dan. Do you seriously believe what you're saying? You work for a publication that has on more than one occasion published articles, either online or in print, that basically explain how to rip CDs and DVDs. Sometimes the articles in question take a coy "don't do anything illegal - wink, wink" approach, but it's pretty clear that the whole point of the article is to tell readers how to at least bend, if not completely break, the DMCA and other intellectual property laws.
Sound to me like it's okay for you make money off from selling instructions that can be used to make illegal copies of SOMEONE ELSE'S work, but you can't understand how "anyone can personally justify making a copy" or YOUR precious work.
Please. Let's not get all holier than thou here. You're hardly a disinterested observer here. Like everyone else - and I have to include myself - you want the deck stacked in your favor. That's OK with me, but let's not pretend that you're taking the moral high ground or anything.

[Terrin]

As I am traveling, this may likely be my last post on the topic ( I hear the hurrays). I borrowed access to Westlaw and spent roughly an hour investigating the issue further.
I found several Law Professors in Law Review articles taking Litman's position, without one opposing it (not to say there aren't any, just pointing out that in my limited search I did not find any). For instance, Professor William Mitchell (without even referencing Litman), when discussing peer to peer networks, writes,

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"From one perspective, P2P networks merely facilitate personal copying of recorded music, an activitythat in other contexts is indisputably legal. Thus, under copyright law, Joe may borrow a CD of recorded music from his friend, Sally, take it home, and copy it to a digital or analog medium for his own personal use. n9 (Citing to Section 1008). A credible argument can be made that the functional equivalent of this activity - copying the file directly from Sally's computer via a P2P network on the Internet - should be treated the same way. The analogy is not perfect, however; there are some differences between what happens face-to-face and what happens over P2P networks. In the physical world, n10 Joe and Sally must know each other in order to establish a relationship in which Sally will loan Joe her CD. Moreover, Sally must trust Joe enough to loan him the CD, since there is at least some risk that she will never see it again. Similarly, Joe's ability to copy CDs is limited by the CDs his friends (including Sally) have in their possession, which may or may not include the particular music Joe wants to copy."

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I do not know about you, but using the word indisputably seems pretty confident to me, as he isn't even debating this point. He is discussing that as if it is settled law. Makes sense to me because a plain reading of the statute supports that view.
Just to be sure, I also searched for cases on the issue. However, as I said before, the RIAA has never sued anybody where Section 1008 has become an issue. Yet recently in a case of first impression a New York Federal District Court, while discussing Section 1008 in a different context, noted,

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"The protected use of a consumer to record music for noncommercial use does not contemplate the commercial recording by a broadcaster to be leased to the consumer for only as long as she pays the subscription fee to that broadcaster."

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See, Atlantic Recording Corp. v XM Satellite Radio, Inc., 35 Media L Rep 1161 (SDNY 2007).
The second half of that quote is irrelevant to this discussion. However, notice that the Court doesn't throw in the phrase for private use anywhere. Instead, it accepts the premise that consumers have a protected right under Section 1008 to record music for noncommercial use. This isn't exactly the Supreme Court, nor is it precedent, but it is a Court accepting the premise that consumers can make noncommercial copies of music.
Believe what you want, but so far, I am the only one coming up with the juice.
Cheers.

[Terrin]

PS:
See my other post. Looks like Litman isn't quite alone. Moreover, Section 106 isn't the end all and be all of the Copyright Act. It is subject to limitations and exceptions, one such limitation being Section 1008, which was written after Section 106.
Your problem is that you think of copyright as merely a property right to the creator of a work. One he is entitled to hold for over a hundred years despite the fact that most copyrighted works are not even original nor required to be. According to the Supreme Court, "the copyright law . . . makes reward to the owner a secondary consideration." See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948). The primary consideration of copyright law under the Constitution is to progress the Useful Arts and Sciences. For that to mean anything, someone needs to read the books, look at the art, listen to the music, view the movies, and run the software. Consequently, sharing copyrighted works has always been allowed provided a balance was struck with compensating the creators. Problem is today that balance is leaning heavily towards the creators because people have come to think of a copyright as exclusive property. Much to the industries satisfaction, people like you perpetuate that slide.
If Section 106 was taken to its literal extreme you couldn't even whistle a song you heard on the radio much less copy music that you bought on a CD to an iPod.

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I see some others beat me to section 106 and Litman's admission that she's all alone in her theory

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[Terrin]

I have been discussing only music. Section 1008 pertains only to music. The same rule does not pertain to DVDs, and you could not make a copy of a DVD and give it to a friend UNLESS you can make a fair-use argument for doing so. Problem is the Studios would likely not sue you for copyright infringement under the traditional copyright act. At least not at first. Instead, they would sue you for circumventing their content protection technology under the DMCA, which really is an anti-copyright act.
Moreover, my argument only applies to making hardcopies of music you legally own, not uploading music for others to share.
So, if you accept my position, which a few people here obviously do not (even though they don't support their reasons for disagreeing), you can give your friend a copy of a music CD that you legally own to do with as he please provided the gift can be considered noncommercial. You do not grant a license, Section 1008 of the Copyright Act gives you permission to make the copy provided the purpose is noncommercial. As my fan-club implicitly suggests, no court has ruled on this issue, but nobody has been sued either for doing so, and several experts support this position. Read the resources I provided, and make your own conclusions. I cannot help you with UK law.

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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.)

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[Terrin]

There is a scene in Pocahontas the movie where the native americans help themselves to the English's belongings. The English appalled by the natives open thievery shoot the offenders. However, the native americans had no concept of ownership. Anyone could help themselves to anything. So what was morally wrong for the English was perfectly acceptable for the Native Americans. However, they didn't have guns.
If you steal from a thief, is it really stealing? Many consider the recording labels and movie studios thiefs. Know this: the public has absolutely no say in the drafting of the copyright law. The public isn't even allowed to appear before the copyright board. For instance, when the whole Internet radio crowd was complaining about accessive rates imposed by the board and lobbied for by the RIAA, they couldn't even appear before the government board setting their rates.

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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.

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[Dan Frakes]

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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.

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Alright, Dan. Do you seriously believe what you're saying? You work for a publication that has on more than one occasion published articles, either online or in print, that basically explain how to rip CDs and DVDs. Sometimes the articles in question take a coy "don't do anything illegal - wink, wink" approach, but it's pretty clear that the whole point of the article is to tell readers how to at least bend, if not completely break, the DMCA and other intellectual property laws.

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Have you actually read these articles to which you're referring? In every instance I can recall, and definitely in every article I've personally written, we've explicitly noted that we're providing the instructions in order to help users enjoy CDs and DVDs they own: Putting their own DVDs on their iPods and laptops for watching on the go, ripping their own CDs to iTunes, etc. We've even included a standard note on copyright -- which you can read here -- with most of these articles, explaining why we think it's OK to convert your own DVDs to a format you can watch on your own devices. Nowhere in any of those articles have we even hinted that readers should use these methods to steal music or movies. You can believe what you want, but we don't write these articles to help people steal.

[DarrenForbes]

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I have been discussing only music. Section 1008 pertains only to music. The same rule does not pertain to DVDs, and you could not make a copy of a DVD and give it to a friend UNLESS you can make a fair-use argument for doing so. Problem is the Studios would likely not sue you for copyright infringement under the traditional copyright act. At least not at first. Instead, they would sue you for circumventing their content protection technology under the DMCA, which really is an anti-copyright act.
Moreover, my argument only applies to making hardcopies of music you legally own, not uploading music for others to share.
So, if you accept my position, which a few people here obviously do not (even though they don't support their reasons for disagreeing), you can give your friend a copy of a music CD that you legally own to do with as he please provided the gift can be considered noncommercial. You do not grant a license, Section 1008 of the Copyright Act gives you permission to make the copy provided the purpose is noncommercial. As my fan-club implicitly suggests, no court has ruled on this issue, but nobody has been sued either for doing so, and several experts support this position. Read the resources I provided, and make your own conclusions. I cannot help you with UK law.

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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.)

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I have, in a non-lawyerly way tried to read as many of the links as possible It would seem that if I assume that you are correct about the ability to make and give away copies there is still a lack of licence. The copies look useless because I would need a licence to play them. That is unless Bob, who I gave a copy to, isn't concerned about his lack of licence. I am guessing there is a law that Bon would be breaking if he used the copy. I can't figure out if this would only cover him playing the CD of if it would also cover uploading it to iTunes.
So. Is the problem merely moving from me, the copier, to Bob the "copyee". If playing the copies is against the law then what is the point of making the copies? If Bob doesn't care about breaking the law then the legal ability to make copies is irrelevant to him really.
I thought a bit about libraries too. When you borrow a CD do you only gain a tempoary licence to use the music? Does such a "temporary licence" exist? If so then once the CD is returned you may not be licenced to play any copies you made.
Also; if you sell on your original CD so you transfer your licence? Does it become illegal to play the copy that I have in iTunes? Do I have to remove it?

[hillstones]

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What Pogue is missing is that purchasing a ringtone is often the only way to put a musical ring on your cell phone; many phones and carriers do not allow you to manually upload ringtones to their phones, so you have to purchase the ringtone even if you already own a copy of the song on CD or from a digital music store.

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This is not true. Many phones support MP3 playback. I can take any of my CD's, import a song as an MP3, use a sound editing program and make my "ringtone" and then Bluetooth the file to the Music folder on the phone. The phone will recognize any MP3 file in the Music folder and set it as a ringtone or alarm.
You can also buy ringtones from other vendors, you are not limited to the restrictions from Sprint of Verizon, which expire the files after a time period. Midiringtones.com provide both polyphonic tones and music tones, that do not expire and can be used with many phones and providers (iPhone, of course, not included in that list).

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You see when you buy a blank music CD, you are paying a special compulsory tax that gets paid to the labels that allows you to do exactly as I say. That is why when you go to a store to buy blank CDs, they are labeled as music CDs and data CDs. The tax is not collected on the data CDs.

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The "Music" blank CD's were created specifically for the CD Recorder Stereo Decks to tax the consumer for making copies or custom CD's of music they already own. On a home recorder deck, you can make as many copies of the original, but you cannot make a copy of a copy. The home recorder decks do not record to the standard data CD-R, they only record to Music CD-R's, which have the "tax" applied to the cost. This is why the Music CD was created. You don't need to buy a Music CD to use in your computer for making an Audio CD.
Computer-based CD-R drives do not have this limitation. Back in the day, the music industry never worried about copying CD's because the technology did not exist. CD to cassette resulted in sound degradation, so there was no concern. Even when the first CD-R drives hit the market, they were very expensive, as were the blank CD's. The music industry began to worry when the cost of both dropped and became standard equipment in computers.