MP3 Downloading - Where is the crime?

This post is more than 2 years old.

So I had an interesting thought yesterday, and was curious to see what other peoples opinion would be. When the RIAA sues some poor kid (not that I excuse illegal downloading), is the crime based on the fact that they downloaded an MP3 or that they possessed an MP3 that they didn't own a physical CD for?

In other words - could I be prosecuted for downloading an MP3 for a CD I already owned?

Now let's say I download an album - and my house burns down. That's something that can be proved with insurance records. Must I destroy the MP3 if I lose the physical CD? It was my understanding that copyright law (ignoring DVDs and their CSS crap) allowed me to make a copy for 'archival' reasons. Does that mean I need to burn the MP3 to CD and then delete the MP3? In other words - I can legally back up my CD, but must back up in the same format. (Audio CD to Audio CD)

As I said, I'm curious what people know about the law. I know I said I wanted opinion's as well - but what does the law saw about this?

Raymond Camden's Picture

About Raymond Camden

Raymond is a senior developer evangelist for Adobe. He focuses on document services, JavaScript, and enterprise cat demos. If you like this article, please consider visiting my Amazon Wishlist or donating via PayPal to show your support. You can even buy me a coffee!

Lafayette, LA https://www.raymondcamden.com

Archived Comments

Comment 1 by dave ross posted on 12/9/2005 at 2:12 AM

remember, these are civil suits not criminal cases. thus they only have to prove you violated their copyright/IP. You would never be convicted of anything.

Comment 2 by Rob Brooks-Bilson posted on 12/9/2005 at 2:17 AM

I've wondered this as well. One thing to consider, though, is that with tools like BitTorrent, you aren't just downloading a file - you're also uploading it as well.

Comment 3 by Christopher Wigginton posted on 12/9/2005 at 2:20 AM

That's what pretty much shut down MP3.com when they started offering a personal MP3 vault. I think what they were doing is as a user, you slip in a CD and "uploaded" it into a personal vault, when in fact, what MP3.com was doing was essentially getting the ID of the CD and using their existing base of MP3 songs. Now from an operations standpoint, this made perfect sense since that would mean next to nothing for storage space requirements beyond what MP3.com was already using for their existing catalog, which is exactly how I and probably every other programmer would have designed the system.

What got them was that they were not storing the customer's music but delivering MP3.com's music, which hadn't been purchased. Had the user actually uploaded music into their vault space, they probably wouldn't have been shutdown.

So in a sense, that is what you are proposing. You are not downloading "Your" MP3.

Comment 4 by tony of the weeg clan posted on 12/9/2005 at 2:21 AM

i guess ive just resolved myself to the fact that its just better karma to purchase, and if i cant get it that way, then i just dont worry about it, and dont listen to it. itunes is my friend these days, and i really do not mind paying. although i have some old mp3's from tapes that i used to own, but got stolen. so am i breakin' the law? i dont think so. as long as i do not aid in the distro of them, or the reproduction of them.

Comment 5 by tony petruzzi posted on 12/9/2005 at 2:35 AM

My suggestion to you Ray is to copy your cds after you purchase them. Next put them into a safety deposit box along with a certified copy of the reciept. That should about do it :).

Personally I wouldn't buy a cd if you gave me the money. I think this whole thing is ridiculous and I refuse to support the RIAA in anyway. Don't get me started on what SONY did either.

If you want to listen to music, turn on the radio or your TV ad tune into a music channel (Comcast has some good ones).

Comment 6 by John Wilker posted on 12/9/2005 at 3:16 AM

A lot of the time it's not the downloading that they go after, it's the uploading. Not sure about MP3.com, but when they go after kids and old ladies, a lot of it has been for uploading music. Not that they don't go after DL's too, just ask Metallica. But the RIAA seems to target uploaders more from what I understand.

And like Tony, if I can't get it on iTunes I don't listen to it. I have no problems with Apple's model, I'd rather buy 10 songs I like off a CD of 14 songs and not have to pay for 4 loser songs. That makes buying music more enticing to me. The artist deserves their money, but making a CD with even as little as 10% suckiness, isn't cool to charge people for.

I can't even recall when the last time I bought a CD.

Comment 7 by Brian Kotek posted on 12/9/2005 at 3:18 AM

I was always under the impression that when you bought a song or an album, you were buying a license to use/listen to that song, not the CD itself. It would be pretty messed up if you license only existed while the physical object you bought the songs on existed. In fact, if your house burned down, I say you shouldn't have to buy the album again. You already bought it; the license is still there. However, the sad truth is that anything that makes the RIAA more money will probably win out in the end. I really can't wait until those unnecessary, greedy middlemen are finally ejected from the music distribution equation.

Comment 8 by Matt posted on 12/9/2005 at 3:19 AM

Just download illegal mp3s and listen to it, who the hell cares, really...come on.

Comment 9 by Nolan posted on 12/9/2005 at 4:41 AM

mp3.com was also buying the CDs to build up their library, then RETURNING them to the music stores, so they could "buy" more CDs with the same cash. So even if it was legal for mp3.com to use their own "purchased copy" of the songs on the server, they weren't following the rules. That was one of the big points as to why mp3.com got busted.

Comment 10 by Doug Cain posted on 12/9/2005 at 4:28 PM

I have wondered about what you are actually buying when you purchase a CD or even a DVD. I haven't seen a license attached to them so far.

I would like to think that you are purchasing the right to listen to the music not the right to listen to it on the format you got it on.

I'm sure the legal eagles have a different take on it though :(

Comment 11 by Phillip Senn posted on 12/9/2005 at 7:04 PM

This is actually an old issue.
Let's say a bar owner tapes a movie in his VHS.
If he watches it himself (personal use), everything's ok.
If he takes it to his bar and plays it for his customers, that's not ok. The thinking is that maybe people are paying (buying drinks) to watch the movie.
The same with copying mp3's, IMHO.
Copying and owning an mp3 is OK as long as it's for personal use. The reason why the little girl got in trouble is because she was sharing her music.

Comment 12 by Jeff posted on 12/9/2005 at 11:04 PM

Christopher,

Check out Oboe, from the creater of mp3.com. It is basically, the mp3.com vault locker concept w/ a slightly different implementation. (and check out mp3tunes.com, which is his mp3.com meets iTunes type of site )

Matt,

As an previous "artist / music creator" and now a recording engineer, I care if people download mp3s illegally.

Doug C,

Pick up any CD released by a major label (let's say Blink 182 "Take off Your PAnts and Jacket"). On the back of it it says "All rights reserved. Unauthorized duplication is a violation of applicable laws." and various other copyright notices. The inside of the booklet has a similar copyright statement along with "used with permission".

It isn't much different than what you might find on the cover page of a book; yet would you scan a book into PDF and then distribute that?

Phillip,

I agree w/ you. I don't care what you do w/ a CD once you buy it (make copies, and put them on all fifteen of your computers, two iPods, and whatever) as long as you don't distribute those copies to other people.

Ray, et all

I think the "fair use" clause of copyright law is kind of vague. How many copies are fair use? How many copies violate the fair use? I think as long as you aren't distributing anything, you have zero chance of getting caught.

If you lose it in a fire, shouldn't insurance cover your loss? If so, can you have 1 CD and 2 sets of mp3s?

Comment 13 by Paris Finley posted on 12/9/2005 at 11:24 PM

re: Doug's "would you scan a book into PDF and then distribute that?" No. I leave that to Google.

Comment 14 by Paris Finley posted on 12/9/2005 at 11:24 PM

re: Doug's "would you scan a book into PDF and then distribute that?" No. I leave that to Google.

Comment 15 by Jeff posted on 12/10/2005 at 12:58 AM

Paris,

Google recieved permission to display the works, and they limit the number of pages that are showed.

Read more about that here http://books.google.com/int... .

Comment 16 by Paris Finley posted on 8/6/2008 at 8:50 PM

I quote from an news article found at weeklystandard.com:
The legal problems lie with the Library Project. Copyright has its foundations in English law and the Licensing Act of 1662. The falling costs of printing had created rampant book piracy in England. Concerned that such behavior would blunt creativity and harm the book business, Charles II established a register of licensed books to protect authors and publishers. A hundred years later, the copyright was the only right the Founding Fathers gauged important enough to recognize explicitly in the Constitution itself. In the intervening years, it has evolved somewhat. Today, works published before 1923 are generally in the public domain. There are exceptions and complexities, but works published after 1978 are protected by copyright for 70 years from the author's death. As for works published between 1923 and 1978, they were given an original copyright protection of 28 years from first publication and another 67 years of protection upon renewal of the copyright. Got that?

And here lies Google's dilemma: Out-of-copyright books account for about one-sixth of all titles. Most books--75 percent of them--are in copyright, but out of print. Only about 10 percent of all books are both copyrighted and in print. Google has decided to get around this problem of copyright protection by simply ignoring it: forging ahead and scanning books, regardless of their copyright status. If a book is in the public domain, its full text is displayed to users, but if the book is protected, then Google shows users only a "snippet" of the text surrounding the search result. It is relevant to note that "snippet" is Google's word and is intentionally not a legal term; how much text is displayed is entirely at Google's discretion.