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A Fine Line Between Copyrights and Wrongs

November 09, 2000|JON HEALEY |

Tyler Shaw of Woodbridge, Va., uses Internet file-sharing services to grab free copies of indie pop or punk songs before deciding whether to buy a CD.

Wayne Guerrini of San Diego and his pals exchange homemade jazz or progressive rock CDs with songs culled from their music collections and the Internet.

Markus Pope of Springfield, Mo., and his co-workers have turned a computer in their office into a way station for free songs downloaded from, making it easier for each of them to copy the tunes.

To the record labels and music publishers, these guys are pirates. By collecting and sharing music digitally, they're violating the exclusive rights of artists and songwriters to record, copy and distribute their works. That's one side of the argument. Other copyright lawyers contend that Shaw, Guerrini and Pope--like the millions of people who use the Internet to collect and share tunes--aren't doing anything wrong because they're not making copies for profit.

"I don't see it any differently than, like, taping a movie off the air or putting a CD on cassette and giving it to a friend," Guerrini said in his own defense. "If I was selling it, that's a different thing. But I'm not selling it."

Too bad it's not that simple. Digital music and the Internet raise many troubling questions about copyrights, and only a few of them have clear answers.

Copyrights spring from the idea that creative people won't have the incentive to write, paint, design or compose if they can't make a living from it. Under copyright law, the creators have exclusive control over five things that might be done with their works: reproduction, adaptation, distribution, performance in public and display in public.

Once they sell (or give) a work, the new owner has the right to sell it, rent it out, loan it or give it away. But he or she doesn't have an absolute right to make copies--that remains with the copyright holder.

There are two basic exceptions to that rule. One comes from the 1992 Audio Home Recording Act, which gave consumers the right to make cassette tapes for "noncommercial" use. The act also covers digital recording devices rigged to prevent serial copying, such as digital audio tape decks, which produce copies that can't be cloned.

What "noncommercial" means is subject to some dispute, but "that's a much broader word than 'personal' or 'for yourself,' " said Neil J. Rosini, a copyright attorney with Franklin, Weinrib, Rudell and Vassallo. "I think it could very easily be interpreted to cover family and a reasonable number of friends."

That's great for people who want to trade tapes and mini-discs, but what about the millions who want to use computers and the Internet to make copies?

Lawyers for Napster say the Audio Home Recording Act gives those music lovers the same protection enjoyed by home tapers--in fact, they say, it legalizes any kind of copying of music as long as it's not for a commercial use. Lawyers for the record labels, music publishers and some other online music services say it doesn't, and they cite a U.S. 9th Circuit Court of Appeals ruling to back them up.

That debate may not be settled until the 9th Circuit rules on the labels' lawsuit against Napster. Even if Napster's lawyers are wrong, there's another exception that might apply to the Net: the "fair use" doctrine, which lifts copyrights for the sake of parodies, criticism, research and some limited personal uses.

To decide whether copying is a fair use, the courts consider at least four factors: the purpose of the copying, the type of work being copied, how much of the work is being duplicated and the potential effect on sales. For songs, two key questions are whether anyone is building a business around the copying and how widespread the copying is. The fair-use exception almost certainly covers consumers making digital copies of the CDs they own and putting them on all the computers and portable players they use.

The exception may or may not permit consumers to share those files with their friends--that's an open question, said Jeffrey Knowles of Coblentz, Patch, Duffy & Bass, an attorney for the music publishers suing Napster. But as a practical matter, Knowles said, the labels and publishers are unlikely to go after people who share MP3 files with their circle of family and friends.

Sharing those files with an anonymous horde over the Internet, however, is testing the limits of fair use. U.S. District Judge Marilyn Hall Patel ruled that Napster users weren't covered by fair use because of the global reach of the service. The 9th Circuit is reviewing that ruling, and a decision is expected soon.

While the law is fuzzy on what copies you can make for yourself and friends, it's clear in barring businesses from making them for you. Or so said U.S. District Judge Jed S. Rakoff in a ruling against, which was filling its subscribers' online music lockers with digital copies of any CDs they could get their hands on.

If you have the CD, you can put copies online for yourself. But can't do it for you without the copyright holders' permission. The copies may be for your personal use, but it's not personal to's commercial.


Times staff writer Jon Healey writes about the digital living room.

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