Re: Making CDs for gifts

>>> SGagnon[_at_]anselm.edu 12/21/01 07:07AM >>> wrote:
My understanding is that a person may make three copies of a purchased CD for their own use. Copying music, even if it is to give away, infringes on copyright law. Am I right? <<<<<

Under U.S. law, any reproduction is an infringement unless there is a specific exception or it is a fair use. Fair use is determined on a case by case basis, based on the court's individualized balancing of four factors. Except for a few of the very specific exemptions (such as the library exemption in Section 108), there are no rules of thumb concerning "how much" can be copied or "how many" copies can be made.

One such exemption is Section 1008, which states: "No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based upon the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

So, a consumer can make non-commercial use of any digital or analog recording device or medium to make musical recordings. There are two "catches":

The first catch is that "digital audio recording device" is defined in such a way (in three nested definitions) as to exclude general purpose computers. [See Diamond Rio v. RIAA] Computers are not analog recording devices either, so I think they are excluded altogether. But if one uses any other equipment "primarily marketed or most commonly used by consumers" for making music recordings (i.e., home stereo equipment), this section would seem to apply.

The second catch is, what is "noncommercial use" of a recording device? Many people would say it is making any copies which aren't sold, i.e., which are given away. If you're not selling it, it is noncommercial. Other people would say it only includes making copies of a recording which one already owns oneself (i.e., a casette version of a CD, or a mix CD), and does not include making copies for other people. The argument is that making copies for other people is a substitute for purchasing a CD, which has a commercial effect on the market.

My instinct is that the latter interpretation is the correct one, but I don't happen to have the legislative history handy to see if it illuminates Congress' intent; and I am not aware of any case law interpreting this section.

Tyler T. Ochoa
Associate Professor
Whittier Law School

>>> SGagnon[_at_]anselm.edu 12/21/01 07:07AM >>> wrote:
I have never posted to this list even though I have been on it for a few years. I have a question; I am almost certain I know the answer, but I need proof or verification. I am a paraprofessional in a library and not a lawyer, so if responses could be posted in laymen's terms, I would appreciate it. More and more I know of and hear of people who record various artists' songs on CDs and give them as gifts to friends, relatives, students and co-workers. For instance, one person copied around 15 Christmas melodies recorded by professional artists and gave them away as Christmas gifts. Another person, a teacher, copied contemporary religious songs and gave a CD to each student in her class.

My understanding is that a person may make three copies of a purchased CD for their own use. Copying music, even if it is to give away, infringes on copyright law. Am I right? Sue Received on Wed Dec 26 2001 - 19:38:14 GMT