Burning question: Is copying music legal?

You've bought the music--now what can you do with it?

By Mike Prevatt

It used to be that someone on the block would score the latest NWA cassette and make a duplicate recording for a buddy, knowing that same buddy would probably hook him up later when the new Ice-T album dropped.

And life was simple.

However, in the post-Napster age, when the Recording Industry Association of America is suing individual members of its target demographic for swapping song files on peer-to-peer programs like Kazaa and Grokster, music buyers are apprehensive about merely burning (or digitally recording) copies of the tunes and albums they purchase, let alone sharing their music online. It takes a lot these days to convince a kid to buy music, but once he actually does so, what can he do with it that won't cost him a $3,000 settlement?

It's no surprise that people can be skittish with sharing their music--the law is somewhat vague when it comes to the user rights of music buyers, and complicating the issue is how the online music experience has changed the music business. Thanks to long-standing fair use rights, it's still legal to make personal copies. But given all these ubiquitous warnings on new CDs about piracy and how "unauthorized copying is punishable under federal law," is burning the new Yellowcard disc a felony?

Mark Tratos, a leading intellectual property attorney and president of the Las Vegas law firm Quirk & Tratos, says you can do whatever you want with your purchased recording, including burning a copy for your personal use. But technically, making a copy for a pal is illegal.

"When you start making copies so others can enjoy the benefits, you're depriving the right of the copyright holder their ability to derive income from their music, and that's when the infringement action typically arises," says Tratos, who recently published an article on the development of entertainment in the digital age for the New York Bar Association (which can be viewed at quirkandtratos.com/articles.htm).

But that doesn't mean you'll get caught. Burning CDs for others is a common infraction, somewhat akin to speeding--people know it's against the law, and yet they get away with it nearly every time they do it. It's extremely unlikely you'll get busted for making a physical album copy for your friends.

"They only can enforce what they become aware of on the Net," says Tratos. "The record companies--through the RIAA, [which has] software spooks that look on every website that has music available--track people that way. If someone burns a CD from an iTunes download and gives a copy to each of their siblings or friends...it's a violation unlikely to be discovered because there are not spies on every corner checking for this sort of music to be handed out that way. It's simply the problem that the music owners don't have enough enforcement."

Some music fans know this, but most are in the dark when it comes to the precise language of the law. According to Tratos, there's a lot of misinformation on the topic, especially online. But there's also a sense that music fans are also reinterpreting the law, which itself is still adjusting to the rapid changes occurring in this medium.

The moderator of peer-to-peer discussion board P2pforums.com, who goes by the handle FreakinWeasel, believes--like many music fans do--that not only is there no wrongdoing in burning music for acquaintances, but fair-use legislation entitles us to do quite a bit with the tunes we purchase.

"Think about downloading vs. buying used [CDs]," says FreakinWeasel. "Do the record companies get a cut? Nope, once an album is purchased by anyone, they are free to do as they wish with that music. If that isn't the case, then we couldn't have the used market, could we?"

Things get murkier when dealing with legal downloads. For the most part, people who buy songs from legit services such as, say, Apple's iTunes Music Store have the same rights and privileges as they would obtaining the same material from, say, Tower Records. However, Apple encodes the music files so that the information can be reproduced in limited fashion. Purchased songs may be transferred to no more than five "authorized" Apple devices (personal computers and iPods, the company's portable player). Furthermore, the only MP3 players that can play iTunes-bought songs are iPods. Apple maintains a strictly proprietary business approach, resulting in a majority market share within the industry.

Lawyers like Tratos and online music users like FreakinWeasel seem to agree on one thing: Current intellectual property laws seem to benefit the labels and copyright holders the most. However, in their efforts to retain as much control and exclusivity as possible, they've limited their business opportunities, partly by alienating a segment of their market determined to redefine their ownership rights.

"Time and again people have shown the RIAA stooges ways to make money while embracing file-sharing," says FreakinWeasel. "They are not only deaf but blind to the opportunities that have been laid out to them. So to that end, I we'll dance on their graves while listening to shared, downloaded music!"