Re: Copyright and MP3 issues

On 04/29/99, Nick Zales <zales[_at_]execpc.com> wrote:
>
> The issue that most seem to forget in battles over tapes or MP3
> issues is that many people make recording of their own music for their
> own use. Yet the music industry is quick to denounce MP3 and demand
> royalties be paid on blank tapes, now on MP3s. I resent paying a
> hidden tax for tapes and do not want to pay one to any recording
> industry group for any storage device. Do they pay lawyers when they
> "borrow" a lawyer's work product and copy it over and over again for
> future purposes? A pox on the recording industry; rather than put
> forth a good product, they are "farming" their so-called rights to
> intellectual property. How many billions have they accumulated from
> the secret tape tax? Now they want to feast off the digital domain?
>
> I think our entire system of copyright law is a travesty. It's
> like the king who wore no clothes. Everybody has their excuses for
> why they are free to violate others' rights, except their own. This
> "course pack" discussion is illustrative. Don't forget, copyright
> battles are not really about intellectual property - they are about
> money. The mistake lawyers make is joining this race to the bottom.

I'm confused. You say that "Everybody has their excuses for why they are free to violate others' rights, except their own"; yet in your first paragraph, you set forth what could be considered an excuse for why you are free to violate the rights claimed by those in the recording industry. I'm also unclear about what the "coursepack" discussion is illustrative of, in your opinion - do you approve of the PUP v. MDS decision or not? As for the observation that I.P. is really about money, I don't think that's exactly news to anybody.

With regard to MP3 itself, you say that "many people make recording of their own music for their own use." What do you mean "their own music"? It's not music they wrote; it's a recording of music that they purchased. The question is whether purchasing a recording also entitles you to reproduce that recording in any new format that comes along, or whether it only entitles you to listen to the recording in the format in which it was distributed. Not surprisingly, those in the record industry want you to have to buy a new copy anytime a new format comes along; while consumer advocates want to have pay for a recording only once, regardless of whether a new format comes along. There are legitimate arguments to be made for both sides. It is difficult to strike the proper balance, but that's what makes copyright interesting.

Finally, you characterize the AHRA as a "hidden tax." ALL copyright law can be characterized as a hidden tax. That's the whole purpose of copyright in the U.S.: to grant to authors a limited monopoly in order to encourage the creation and dissemination of new creative works. That "limited monopoly" assures that prices will be higher than they would be in a free market, which amounts to a hidden tax for the benefit of authors. The only difference between copyright and the blank tape tax is that the latter also taxes some uses of tapes that do not involve the reproduction of copyrighted works. But Congress made the judgment that the vast majority of uses were reproductions, and that it was better to tax non-reproductive uses than NOT to tax the much greater number of reproductive uses. You [and I] may not like the judgment that Congress made, but that's a far cry from it being a "travesty."

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Apr 30 1999 - 18:20:39 GMT