If you can’t buy it, is it legal to copy?

Here’s a big, hairy question:

From: Francisco Garcia Maceda
Subject: Napster
To: Dave Farquhar

I have also been playing around with Napster for a couple of days and as you have seen there are a couple of rough edges still in the design and implementation. However, I think this is going to grow to something bigger and probably very different from the original implementation. There is already Wrapster, which allows you to “wrap” files, images, videos, programs, etc. in MP3 headers so you can exchange this “wraps” as if they were actual MP3’s. We’ll see.

The other day I was talking to a friend that made some research into copyright law both in the US and locally (Mexico). It appears that in both countries you can copy ANY copyrighted material that is out of print or distribution as long as you do not redistribute it or profit from it. This could be very important for people that don’t want to encourage piracy but at the same time is looking for some old tunes/books/etc. that are impossible to obtain today since they have been out of print for years/decades. Maybe you or one of your readers could shed some light in this topic regarding copyright law in the US and even in the EU?

Francisco Garcia Maceda

My understanding is that copyright law makes no provisions for material that’s in print or out of print, and until the copyright holder says it’s OK to freely copy something, freely copying it is illegal.

Tracking down the copyright holder can be a real pain. I wrote Optimizing Windows, but I don’t hold the copyright on it. If O’Reilly takes the book out of print, that doesn’t mean people can freely copy it. And in the case of my contract, O’Reilly retains the copyright, so you can’t get my permission to copy it–because I can’t give it. Sometimes the rights revert back to the author, but only the publisher and author can generally answer that question.

Those Young Snakes tunes I was referring to are a case point. Aimee Mann doesn’t own the copyrights on those, so she can’t give permission to freely copy them. She’s toyed with the idea of buying back the rights, but that’s never happened. So, technically, yes, by owning those MP3s, I’m breaking the law. Whether anyone cares is another question. Since no one’s making money off this 20-year-old EP that’s been out of print for probably 18 or 19 years, probably not. As Pournelle says, you have to let your conscience be your guide. [Ironic note: Some months later, Andy Breslau, the album’s producer, mailed me. We had a long, pleasant discussion over e-mail, and $10 later, I have a legal copy of the EP. So sometimes copyright holders will find you.]

Music is a bit hairy, because there’s the copyright on the lyrics and notes themselves, but then there’s the copyright on the recording. The label owns the copyright on the recording. The songwriter owns the copyright on the lyrics and notes. If an artist breaks from a label, the recordings don’t go with them, but they have the rights to re-record the song. Prince has long been threatening to do exactly this (and for all I know he’s made good on it).

That leads us into live concert recordings. A recording that a sound technician makes by splicing into the soundboard or that a fan makes by smuggling in a recording device isn’t covered by the label’s copyright, nor are they covered by the artist’s copyright, which is why the courts have upheld the rights of bootleggers. When you go into a record store and plunk down $40 for a Tori Amos live CD, Amos never sees a dime of it. The live recordings field is an underground industry, living on the very fringe of the law. As I said before, some artists worry about this stuff a lot, while other artists go so far as to encourage it. You have to be a fan to love these recordings, so I don’t see any problem with them. Record labels do, but the law isn’t on their side in this case. They may argue that this hinders their ability to sell live CDs, but I don’t buy that. I own every live Joy Division album their record label ever put out, plus every bootleg I’ve managed to find. The fanatics will buy anything that has their favorite band’s name on it, and those are the people who plunk down obnoxious amounts of money for these bootlegs. If those MP3s hurt anyone, it’s the bootleg record companies and the record stores that deal in them.

The other place where this question comes up a lot is old software. The author doesn’t make a dime if you go buy an Atari 2600 cartridge at a flea market for a buck, so it doesn’t make any difference to the author, I would assume, if you bought a copy of it or just downloaded the ROM image and played it with an emulator–though it makes a big difference to the law. With software this old, frequently the publisher is long gone, the author may or may not still be alive, but the copyrights are still valid for a few more years and someone, somewhere, owns them and could choose to enforce them.

Really, what it comes down to is two questions: 1. Am I hurting the owner of the copyright? And 2. If I’m not hurting the owner, morally I can do this, but legally I may not be able to, so am I willing to take that risk?

I hope that answers your question. I’m sure others will pipe in as well.


More thoughts on MP3. Record sales are down. The industry blames MP3. But as labels consolidate, they axe artists by the hundreds or thousands. The end result is fewer people recording music, and, probably, fewer sales. Plus, many artists don’t hit it big right away. It took U2 seven years and five albums. Today, they’re Ireland’s biggest industry. They wouldn’t have survived if they had come along in 1999 rather than 1979–Boy was a great album, a really great album, but probably wouldn’t have been a great commercial success in any era.

I don’t think MP3 hurts teenybopper bands like The Backstreet Boys and ‘NSync. Sure, those songs get pirated by the boatload, but they also sell by the boatload, and much of the money surrounding bands like that is in merchandising–lunch boxes, bedsheets, posters, videos… The records are an afterthought. (And it shows.) Those bands will disappear within a couple of years, just like the New Kids on the Block did in the late ’80s/early ’90s and the Bay City Rollers in the mid-1970s.

I think who the MP3s really hurt are the one-hit wonders. You know, bands like Deep Blue Something, who record an album with exactly one catchy song (“Breakfast at Tiffany’s,” in that band’s case) that goes on to become a mega-hit, but with no obvious followup the band drops off the face of the earth.

I don’t see how MP3s can hurt established bands any more than radio taping does. And record companies fall all over themselves to get their acts played on the radio.

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