- February 22, 2008 @ 1:11pmseagrimm7 says:I have a band director who wants to convert old (1950's) classical LP albums to CDs. If they are for educational use, is it legal?
- February 29, 2008 @ 3:44pmCarrie says:Not so much. It is likely that the 50's albums are protected by copyright (not in the public domain). It is also likely that one can buy the 50's albums in the market place right now in the CD format.
My guess is that the LP format is not considered obsolete yet, but I could be wrong. Are record players still available for purchase?
But in any case, if you can buy the title in the CD format, the law says you cannot make a copy.
- March 3, 2008 @ 3:49pmFreya Anderson says:Record players are, indeed, still available. I've heard that, after waning in popularity, their use is actually increasing, especially by audiophiles, who claim that the format captures more texture and extremes of volume of the original performances than most digital formats.
- March 4, 2008 @ 2:39pmAFry says:It's certainly true that 50's albums are almost certainly protected by copyright. It's certainly true that educational use does not provide a blanket exemption. However, there are 3 reasons that I believe that music conversion can be legal.
1. A long time ago, I tried to find any example of the RIAA opposing this kind of music conversion. I found none. I even emailed the RIAA to see if they had a position, but I received no response. The RIAA is definitely opposed to file sharing, but as far as I can tell, they have never opposed music conversion in the manner described here.
2. Products designed specifically for this kind of use exists.
3. I found out about this equipment when I saw an interview with John Mellencamp. He has converted all of his LPs and doesn't seem to have a problem with this. Since then, I believe that I have read of other musicians who have converted LPs to CDs. I won't swear to it, but I think one of these musicians is Ron Wood of the Rolling Stones. I think the interview was in one of the major news magazines, probably U.S. News, Newsweek, or Time.
Personally, I consider this a fair use based on the four factors (this forum contains many topics that discuss the four factors in greater detail):
1. Non-commercial use, in this case educational. For fair use.
2. Creative work. Against.
3. 100%. Against.
4. Market effect. I would argue negligible or non-existent. I have a large CD collection that took me over 20 years to collect. I have bought a few CDs that I really like a lot twice to get remastered sound. However, many of these CDs are no longer available. The cost of buying all of this music again in a different format is prohibitively expensive, assuming it is even available. I have 2 choices: convert or not convert. Repurchase is not an option.
Even if you do not accept this market use argument, I would argue that the total market for LP conversion is a trivial % of the entire market for new music sales. And shrinking every day.
I'm open to other interpretations, but if the copyright holders who are known for aggressive prosecution aren't complaining, equipment designed for no other purpose is legally available, and well-known producers of copyrighted material are using this equipment, I have a hard time believing that this isn't a fair use.
- March 4, 2008 @ 5:59pmFreya Anderson says:I still think that this would probably not be fair use, at least for those titles that are available for purchase in CD. I am aware of the conversion kits and know people who have used them. To me, and to many I speak with, it _feels_ like it should be similar to time-shifting, as in the Betamax case, and thus allowable. However, I do think that converting records instead of purchasing CDs could have a significant market effect, and while the four fair use factors are not officially weighted, in practice, the fourth factor has seemed more important than the others. So, it doesn't seem to me that this practice would be fair.
I think that the fair use argument would be stronger for those titles not available in CD, although I'm still not confident how it would shake out if it actually went to court.
I'm interested by your argument in #1 and #2, AFry, that this use is allowed because the RIAA hasn't opposed it, despite the equipment being available and some big name people publicizing it. It seems that your argument is that if the law is not enforced, then it becomes unenforceable. Am I understanding you correctly? I understand that trademark needs to be enforced to be enforceable, but that was not my understanding here.
Part of any copyright analysis should include an analysis of how the copyright holder is likely to interpret the law and whether or not the person making the copies (and her institution) is willing to deal with a court case, which is a huge hassle even when you believe that you're right. I agree that in this case, a suit seems unlikely. That said, I don't know that I would want to be the test case with this argument.
- March 4, 2008 @ 10:13pmAFry says:
It seems that your argument is that if the law is not enforced, then it becomes unenforceable. Am I understanding you correctly?No. I'm saying that the RIAA has devoted an enormous amount of money to combat illegal distribution yet has apparently spent nothing at all to combat LP to CD distribution. Despite demonstrating overwhelming aggressiveness to enforce copyright, the RIAA appears to be completely unconcerned about LP to CD distribution. I can think of only two explanations for this: 1. The RIAA believes that LP to CD conversion is legal (fine with me) 2. The RIAA believes that LP to CD conversion has a negligible market effect (which means fair use to me). By the way, according to the RIAA, the net value of the 2006 physical and digitial music market was $11.5 billion. That value represents 1.58 billion units. If I've done the math right (don't bet on it), 1% would be 158 million. How big is the market for LP to CD conversion? I don't know, but I don't think its anywhere near 158 million.
Part of any copyright analysis should include an analysis of how the copyright holder is likely to interpret the law and whether or not the person making the copies (and her institution) is willing to deal with a court case, which is a huge hassle even when you believe that you're right. I agree that in this case, a suit seems unlikely. That said, I don't know that I would want to be the test case with this argument.I agree. I don't want to be the test case either, but I think the odds of being sued are practically nonexistent. Also, I think the RIAA's actions are indicative of how it interprets the law and its willingness to sue.
- March 4, 2008 @ 10:20pmAFry says:Forgot to add this from the RIAA web site:
"Music theft can take various forms: individuals who illegally upload or download music online, online companies who build businesses based on theft and encourage users to break the law, or criminals manufacturing mass numbers of counterfeit CDs for sale on street corners, in flea markets or at retail stores. Across the board, this theft has hurt the music community, with thousands of layoffs, songwriters out of work and new artists having a harder time getting signed and breaking into the business."
I would argue that new artists will have an even harder time getting signed if money spent on new music is diverted to LP to CD conversion.
- March 7, 2008 @ 2:22pmFreya Anderson says:I agree that it seems the RIAA doesn't care about conversion. However, looking at all four factors, I still don't think that this would likely be determined to be fair use, in the unlikely event that it came to court.
One thing that helped me in thinking about this was redoing the analysis with books, or even audiobooks. I know that other discussions have seemed to come out against fair use for similar situations with upgrading audiobooks. This doesn't mean that either answer is right, but is another factor to consider when making your own determination.
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