What is the longevity of a "lawfully made" copy?

Denise hosted her 20th episode (Ethically Cleansed) of her legally-minded program This Week In Law. I had a great time appearing on the program with my co-panelists Evan Brown, Ernie Svenson, and Ben Franske.

I listened to the episode earlier this week and, in listening to our discussion about ipodmeister.com, I am a bit embarrassed by how many times I said "fair use" when I really meant "first sale" and vice versa. Over the past few days, I've also had a chance to think about ipodmeister's business a little further. The bottom line: I think that ipodmeister is going to lose any U.S. copyright action that is brought against it. Here's why:

When the customer exchanges the CDs for an iPod, there is no action that triggers the copyright act - namely, none of the six rights granted the copyright owner under 17 USC 106 are implicated (because the exchange is certainly a protected distribution under the first sale doctrine). But, when ipodmeister rips the CDs and sends the original CD owner a digital copy on the iPOD (with the later plan to sell the original CD), ipodmeister has at least three problems.

First, a court is unlikely to find that the ripping is a fair use reproduction because each of the factors will weigh against it:
1) nature of the use - clearly commercial and not truly transformative;
2) the works copied (songs/lyrics) are highly creative;
3) they are taking the whole work
4) intended future sale means a direct effect on the potential market for the CDs

Second, no matter how mixed up my comments were in the episode, ripping the CDs cannot be protected by the first sale doctrine because the first sale doctrine only applies to distribution claims (under 17 USC 106(3)) and does not apply to reproduction claims (under 17 USC 106(1)).

Third, since the copying is (most likely) infringing, the first sale doctrine also cannot apply to the subsequent sale of the CDs by ipodmeister because that doctrine only protects the downstream distribution of "a particular copy or phonorecord lawfully made under" the Copyright Act. {Updated 2-11-09!}distribution of the copied CDs back to the original owner (in the form of an iPod, recordable CD/DVD or whatever medium upon which the copies are made). These copies are not "lawfully made" under the Copyright Act. (Note, however, that there is nothing wrong with ipodmeister's further distribution (sale) of the original CDs received from the customer. Those are still the original, lawfully made CDs and the first sale doctrine will protect that distribution.){End Update!} So, there you have it, I think ipodmeister will not survive a US-based copyright claim against it.

Now, a more interesting fact pattern might be the example Denise suggested in the episode: assume the owner of the original (lawfully made) CDs rip them at some time and at that time intend that copy to be her backup (fair use) copy. Later, that same owner decides to discard or sell the original CDs for whatever reason -- e.g., decluttering her home or raising some money to feed children during a recession. Would this be an infringing distribution of the CDs or is the distribution protected under the first sale doctrine?

I'm not certain how this would play out yet. I can see arguments both ways:

The first copyright event in this fact pattern (the back up copy) is a fair use copy (notwithstanding the RIAA's wavering on this point). The second event (the distribution of the CD) is plainly protected by the first sale doctrine. Therefore, it is a completely protected series of actions for an owner of a non-DRM CD to take. Fair use and first sale actually work well for this scenario and as intended by the statute. The argument that it is not infringing, however, requires a court to find that the fair use copy remains a fair use copy forever, notwithstanding future actions relating to the CD from which the original ("lawfully made" = fair use) copy was made.

For this fact pattern, I could see certain facts having an impact on the outcome of the fair use analysis: how much time has passed between the fair use copy and the later first-sale distribution? Are there any facts that one could impute a bad faith motive by the "fair user" (that silent but sometimes deadly "fifth" fair use factor)? Finally, even if the time between the copy and the distribution were short and there is some evidence bad faith, one could argue that the intent or bad faith of the fair user is totally irrelevant to the fair use inquiry (copyright infringement is a strict-liability tort, after all).

In other words, what is the longevity of a "lawfully made" copy? I don't believe a court has ruled on this question before.

What do you all think? I would enjoy hearing some debate around this.

Comments

Although I haven't done any research on this particular point, my impression is that the two "infringements" are independent. I'm inclined to think that in your fact pattern, the moment the fair user sells the originals, the fair use defence dies out because the argument for the transformative purpose ceases to exist.

It's amazing (and disturbing) how fleeting the fair use doctrine can be - I seem to remember Nimmer's treatise suggesting that what was once a fair use can cease to be a fair use if the fourth factor leads and the market shifts (for example, the advent of the ringtone licensing market killing off fair use arguments in that space).

I must acknowledge that courts have found activities fair at one time, and then later found very similar activities unfair. Compare Kelly v. Ariba (2003) (thumbnails being fair use in image search) with Perfect 10 v. Amazon/Google (2008) (not adopting a hard thumbnail rule because cell phone use of small images became a relevant market for copyright owner, thus thumbnails not automatically fair). Despite this, I can't agree that the fair use right is fleeting. Most fair use is about criticism/commentary etc., and that sort of use doesn't change over time. The technological uses -- like the thumbnails example -- seems perhaps more "fleeting" but it really is the facts of each case that have changed which lead the court to not embrace as a hard and fast rule that *all* thumbnails in *all* circumstances are fair.

It's a shame how these products can have their regulation of usage changed so suddenly. I think fair use needs to be more consistent and static, and less dynamic.

Steve
Covert Hypnosis

that's an interesting question. In fact, if you look at other places in the CA you'll see that a lawfully made copy does no remain lawful under all circumstances. Perhaps the most direct example is sec. 117(2) - copy of software for archival purposes. So, a once "lawfully made" copy is not always legal the next day. My personal opinion is that fair use is not the best way to deal with private copies, I'd prefer a clear and straightforward statutory exception. Some other countries do have such exceptions in their copyright laws, alas those exceptions are usually not so clear and straightforward...

I, too, would like a specific statutory exception on the back up copy question, but I think it's unlikely to happen soon.

The 117(a)(2) text is interesting, but it doesn't use the same words as section 109. It specifically doesn't say "lawfully made" which is important because that phrase in 109(a) is in the past tense (the act of making the copy is done and over). Section 117(a)(2) also shows that if Congress wanted the fair use right under section 107 to be temporal or to be extinguished on a later action (like in 117(a)(2)) it could have expressly stated that in section 107 as well. Instead, sections 107 and 109 (amidst hard lobbying against them) are clear and forceful statements that a fair use is not an infringement of copyright and that owners of lawfully made copies of works can dispose of them as they wish without violating the distribution right of the original copyright owner.

Fred pointed out an error I made in the analysis of the original CD. It is an original, presumably "lawfully made," original copy that the customer purchased and later sends to ipodmeister.

Part of the problem is that we don't really have a good idea of why, and under what circumstances, ripping the CD is fair use. The standard line is that RIAA v. Diamond held that making a copy for "space shifting" was a fair use. Unfortunately, that was almost a throw-away line in the case, which was really about the Audio Home Recording Act.

It's important because there are two alternate formulations for the "space-shifting fair use":

(1) making a copy of a work with the intention of using that copy on an mp3 player while continuing to own the original.

(2) making a copy of a work and then continuing to own the original while using that copy on an mp3 player."

If the fair use is (1), then once the copy is made with that intention, then you no longer need to worry about what you do next (you can change your mind0; the only place that you need to worry about fair use is when you did the original act that would have been infringing.

But, if the fair use is (2), then the continuing conduct is joined with the original copying as kind of one long act. Once you sell the original, you're not in fair use any more.

It all depends on how you read Section 107: ". . . the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as . . . is not an infringement . . . "

That sure SEEMS to read like (1) -- there's a reference to the six enumerated rights, and then a "for the purpose of" language. But, if "including" also implies "but not limited to," then a fair use could also require certain conduct after that first infringment, and (2) may be right.

But, if the fair use is (2), then the continuing conduct is joined with the original copying as kind of one long act. Once you sell the original, you're not in fair use any more.
Birthday Messages

i think that a CD have a copyright but Law cant act any more if the first buyer share with other using there iPods so the other only can request about fair usage policy any how its not final a lawyer can discuss deeply

http://www.paktech.co.cc

If you ask me, there is no such thing as fair use when it comes to US copy right laws in this case. That is why they will lose any U.S. copyright action against them. http://menexis.com is one company that has been dealing with such things for years now.

Add new comment