As mentioned in a prior post, you might have phrased the question as: Do you believe it proper to violate the law and become subject to penalty by...
A less tendentious phrasing would be If you were able to make the law, would you...
As phrased, the question has already determined that those who respond are willing to violate law (or other legal constraints) as a result of their own evaluation of the rightness of an action.
That's leaving out the more essential for the less essential consideration.
The voting in my digital media ethics poll is now closed, and I’m sorting through the fascinating results, which I’m going to respond to in a series of posts. To kick things off, I want to talk about the one issue where there’s practically no disagreement. Look at the response to this question:
Do you think it’s proper to buy a CD, rip it to your hard drive, and then make copies for your own personal use on multiple devices or computers?
- Yes: 96%
- No: 2%
- Sometimes/Depends: 2%
I believe the ayes have it. The question gets a little more complicated if you include copy-protected DVDs (which is why I didn’t ask that variation), or DRM-protected downloads, a topic I’ll discuss in more detail tomorrow. For music CDs, however, the conclusion is crystal clear. The overwhelming majority of you believe that if you buy an album, you’re buying the rights to play back that performance any way you want, as long as it’s for your personal use. If you buy a CD, you should be able to make a backup CD, another CD copy for the car, digital copies in any format and bit rate you prefer for your computer and for your iPod or Zen or smartphone (and another for your spouse’s portable player), mix CDs, and playlists.
This comment, from the Talkback section of the poll, summed it up well:
I am perfectly willing to pay a fair (not inflated) price for someone else’s work. However, I should then be free to use it as I wish. That includes copying it to other media, storing it for later, or any other personal use (including sharing it with my family at the same location). Under those conditions, I don’t feel I have a right to re-sell it for a profit, or massively distribute it.
We will now have a brief intermission while paramedics remove the RIAA executives who are experiencing chest pains just reading that previous paragraph.
The same comment continues:
Unfortunately, the corporate entities that control the mass market media are so scared of new technologies that they are trying to deny us reasonable use of things we have already purchased. They are also using digital rights as lever to overcharge us; trying to charge us as much for on-line media as they would for hard copy CDs and DVDs (which have far greater production, transportation, marketing, and point of sales overhead costs). As a result, I will do whatever I can (without taking excessive legal risks) to subvert their system, until it falls apart of its own inertia. At that point, I look forward to purchasing copyrighted media at a reasonable price to use in whatever way technology permits
That’s no exaggeration. Officially, the RIAA refuses to even enter into this argument, contending that you have no right to make a backup copy of a music CD. On a page starkly entitled “The Law,” the RIAA concedes:
It’s okay to copy music onto an analog cassette, but not for commercial purposes. It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.
But digital copies? No way, says the RIAA, although we might let you get away with it:
Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns [emphasis added] so long as:
- The copy is made from an authorized original CD that you legitimately own
- The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
How kind of them to mention that it won’t usually raise concerns (wink wink, nudge nudge, say no more) if you want to copy a CD for your own personal use. That’s not to say they won’t try to sue you someday, just that they’re a little busy with other battles right now.
Elsewhere on the RIAA site, a FAQ “for students doing reports” says, “Record companies have never objected to someone making a copy of a CD for their own personal use.” Again, they’re steadfastly refusing to acknowledge any right to make even a backup copy so you can protect media from being scratched and rendered unplayable. And that’s not just shyness. It’s official policy for the entertainment industry at large. In an official Joint Reply (PDF) filed with the United States Copyright Office on the Digital Millennium Copyright Act last year, the lawyer for a consortium of 14 content providers, including the MPAA and RIAA, summarized his clients’ beliefs in regard to backing up your CDs:
[T]he making of back up copies for personal use has never been held to be a per se noninfringing use [and] we oppose the recognition of any of these exemptions.
[...]
The justifications offered by the submissions for making back up copies mirror those offered in 2003: possible damage that would render a copy unusable and the convenience of travel copies. Neither of these justifications is compelling.
And if a CD does get scratched? Hey, tough luck. Buy another one:
Presumably, consumers concerned with the ability to make back up copies would choose to purchase music from a service that allowed such copying. Even if CDs do become damaged, replacements are readily available at affordable prices.
Did you know the recording industry offers replacement copies at affordable prices? How come I’ve never heard of that program? Oh, right. because it doesn’t exist. What the RIAA is saying, in that official document, is that if your CD gets scratched you can go buy another copy. Sorry, no. For what it’s worth, I’ve been burned too many times by CD players and changers that mangle discs. The very first thing I do when I buy a new CD is to make a copy for use in the car. Then I rip the tracks from that CD to a home server and use those copies for the Media Center PC in the living room or the computer in my office and for filling up our portable music players.
According to the RIAA, I don’t have a right to do any of that stuff. Fortunately, I feel great knowing that you 98% of you agree with my philosophy and disagree with the RIAA’s extremist point of view. That’s how far apart the entertainment industry and its customers are today.
The big corporations that package music and movies today were built in the pre-digital age, and the attitude embodied in the above statements comes straight out of the 1970s. If the media giants that control the music and movie industries can’t take even a tiny baby step into the 21st Century, it’s no wonder their customers are willing to live by their own, more reasonable rules.
Coming up next: The file-sharing standoff.
. From Black's Law Dictionary, 7th edition (a legal dictionary for lawyers) here is the answer: "Theft, n.: The felonious taking and removing of another's personal property with the intent of depriving the true owner of it."
