Curious what y'all think...

As I understand it, it is generally accepted as legal and ethical to make a backup copy of a copyrighted work for use in the even that the original becomes unusable. I also believe that it is generally accepted as being okay to, with respect to audio CD's for example, create custom mixes from different discs for personal use as long as you retain ownership of legally purchased original releases. Be they on "mix" CD's or transfered to portable devices.

If I've made a mistake already, please let me know...

Finally, I understand that if one is to sell one's original CD, one must either destroy/erase one's backup copy, OR PROVIDE IT WITH THE ORIGINAL BEING SOLD. As it is not illegal for whomever legally owns the original disc to also possess a backup copy for legitimate legal purposes, the question of who created the original is essentially immaterial. I mean, if my friend, who doesn't have a CD-burner (yeah yeah I know its a stretch, but it is certainly still possible!) asks me to make a backup copy of his disc since he is such a klutz and always scratches his discs to high hell, is this a legal/ethical issue?

Again, let me know if I'm in murky waters already...

Okay, so what about selling an original, legitimately obtained music CD along with a backup copy? Just in case the original becomes unplayable. SONY ain't gonna replace the disc if it gets scratched up, but you still have the right to listen to the disc in your car, right? And if your car player won't play scratched discs? Or maybe it will, but who wants to listen to a bunch of staticky music anyhow? You still have the right to listen to the music you legally obtained without the static, right?

Stop me if I'm wrong...

So if its okay to sell my original cd, along with my backup copy (or copies, if I have several, 'cause I treat all my discs like crap and scratch them all up using them in my messy car, as long as I provide all of them and don't keep any for myself), then can I also sell my orignal CD, packaged with a backup copy of the same album AND with a disc of the same album with tracks compressed to MP3 or WMA (hell, or even .FLAC if I like lossless compression on my portable device)? Can I offer up for sale my original audio CD, my 5 backup copies of the original audio CD, and a couple of discs full of various compressed versions (different formats, bitrates, hell, even filenaming schemes?) as long as I provide it all together to the same buyer and keep no copies for myself?

Just curious as to where the line is drawn, legally speaking...

Any thoughts?

I think it depends where you live. In Germany for example, you can create a backup copy of a legal original CD. That said, you can even create a backup copy from a CD you borrowed from the library and it would still be legal to listen to it. You could even create a copy for your best friend and he can again create a copy for his best friend or brother - all these are legal because the copies are from an original CD. However, once the original CD is lost (or sold), all copies become illegal. Therefore, even if you destroy an original CD, do not throw it away but keep it in a place so that you can show it if you should ever have problems with the authority.
If you should sell the CD, you also have to sell the backup copies or destroy them.

This is all fine as long as the CDs do not have a copy protection. While the German law states that it is illegal to circumvent a working copy protection, it is not defined what is meant by "working". Generally, you are not allowed to make a copy if you know that the disc is copy-protected (for example if you see the label "Copy Control" or "Copy Protected" on the cover).

Since you are allowed to make backup copies for private usage (and this includes giving the disc to your friend or brother), I guess you are also safe to make MP3s or whatever and when selling the original CD, also include the MP3 disc.

Edit: By the way, if I am not mistaken, you are allowed to make five to seven backups, so having 100 backups in the house is not legal.

Backups are illegal in the UK (and the RIAA are attempting to claim the same in the US ) so I doubt you'd be on the right side of the law here.

This isn't true. According to an article (aparently the passage I am referring to is not available on this webpage, but you can see it in the print version under "Ersteigert, entgeistert") in the german computer magazine c't you are allowed to keep the backups after you sold or gave away the original. As long as it's a backup of a legal (not bootleg) audio CD without copy-protection it's fine no matter who owns the original. Otherwise the procedure that even people who received a backup from you are themselves allowed to make further backups from that first backup wouldn't be possible.

You have to destroy the backups of commercial and copy-righted software CD/DVDs when you're going to sell the original. This is the origin of this myth.

About who's a friend and who's not: Sharing copies in your circle of friends is ok, also a person you sell your CD to is considered to be a part of this circle of people, so all these persons are allowed to have copies. What is not legal is to distribute copies to "strangers" for example of an online community of a torrent index/tracker or a edonkey forum with links.

By the way, DVDs are a big no-no. Since they have at least two copy protections, Macrovision and CSS, so analag as well as digital copies even for personal use only are illegal.

This only applies to Germany, I have no idea how this is handled in other countries.

Actually, the latest c't article stated otherwise. With the actual german law (§53 UrhG), you can keep a copy of an unprotected audio CD if you sell the original ... because the private copy has been obtained through perfectly legal means.

Edit ... Fandango beat me by 9 minutes

Damn, I mixed up with software copies like Fandango said. >_<

IMHO, such law should apply to all countries over the World!

Well, I don't think so. There are several things that aren't so great. For example, if John Does tries to copy a protected CD he just purchased (but doesn't know that the disc is protected) and his CD-RW drive has no problem making a copy, the copy would be illegal because he circumvented a working copy protection.
Also, did you know that providing 30 samples of audio tracks is illegal in Germany? (I know that this last point doesn't have much to with the actual question, but still.)

But, in that example, did the copy protection actually "work" if it failed to stop him from copying the CD?

Yeah, imo this is the most funny and self-contradicting part of the (German) current law.
The law text talks of "working" copy-protection.
Obviously, in case of simple copies made by CD-RW/PC, analogue ones via CDplayer and fed to soundcards etc., or even digital ones via CDplayers digital out and digital recording to pc, the copy-protection of the copy-protected CD, did not kick in, did not work! So, according to my simple understanding of German language in german law, these copies of copy-protected CDs are legal ?!!
IIRC, the asked lawyers by the ct-magazine had varying opinions of this matter.
it was something 2:2 opinions, they had eg. the opinion, that even special EAC versions detect toc manually would be legal and copies obtained by this feature, because: this feature is not (old) EACs main content, only a side-feature, and even a normal one, as EAC does only, what is required by CDDA (red-book-standard), read the 1st session... In same context, the lawyers questioned the legality of CDplayers, which *can* play copy-protected CDs...

Summary:
copy controls/protections of CDDA are very questionable and especially usage *for* the industry. (The topic of DVD is completely different of course.

I have an evil suggestion, if i were in charge of the industry/law regarding music & copyrights: selling CDDA with on-cover-printed restrictions/permissions, of how often the cd can be copied for fair/private/backup-security use, and that these copies are only legal, if orighinal CD is still there. The number of permitted copies could vary from 0 to 7 or whatever. So, with this model, it would be simple for the law/industry, to see, if a copy is legal or not. But, do they want simplicity ?! Obviously the lawyers don't, it would make their job superfluous, lol, and the industry was simply too stupid so far.
I hope, the industry does not read here, err.

Okay...let's suppose I decide to sell my entire music CD collection on eBay. But, instead of selling individual discs for $3 or $4 each, I decide to include a set of backup copies (including a high quality .wav copy using EAC, a losslessly compressed FLAC file archive, and MP3's and WMA's in various bitrates...maybe even some bitmapped cover art, with some smaller jpeg files thrown in as well). Only now instead of selling them for $3 or $4 I can effectively sell them for $5 or $6.

Thoughts?

Would love to hear from somebody outside of the EU...no offense to the Germans of course!

I'm afraid it's me again...

I'm pretty sure that's illegal or will you get into trouble. And be aware that law sharks and anti-piracy companies hired by MPAA/RIAA/<add software companies equivalent to the former organisations here> are constantly screening eBay and other online auction platforms for these kind of offers.

My strong advise: DON'T DO IT unless you are 100% sure it is legal in your country. And even if it's legal be prepared to hear from the media content industry. Also check the terms of the auction website, it may be legal in your country but still prohibited by eBay and Co. You have to consider if this risk is really worth some extra bucks.

I'm not actually considering doing this, BTW...this is really just a hypothetical that came to me last night. I am wondering how far the "fair use" concept will stretch in certain situations.

As far as America goes, it would be illegal to give digital backups to audio CD's to the person that purchases the original audio CD's from you. You would get in trouble for giving them the backups but you would get in more trouble for charging more for the CD's just because they came with the digital backups, you would be acting as a digital drug dealer. The only legal digital media that you can include with the CD's are the jpeg CD covers if they can be obtained from free services (you can find album art for free so this really isn't a problem).

Additionally, if you were to sell your audio CD collection, you would have to delete the digital backup material as you no longer own a the copyrighted material. Also, if your original CD has DRM implimentations, then it is illegal to make a digital copy of that and you must use the digital backup that the CD company provides (normally DRM'ed WMA files).

There are really too many laws and legal procedures that go into copying material that you own. Audio CD's are still pretty loose when compared to DVD's though. In America, it is flat out illegal to make a copy of a purchased DVD eventhough you purchased it. With most audio CD's, this is legal. It is even illegal to make copies of non-encrypted DVD's (the older ones). You can only copy a DVD if you burned it (ie home movies).

The RIAA has really changed everything. First they wanted to make portable digital audio players illegal, then they wanted to shut down file sharing networks, and now they are encrypting audio CD's so they can't be copied (Velvet Revolver's 1st album).

Edit: clarification

I don't think this is true. You can find covers on the Internet, but this doesn't make them free (I mean, you also find MP3s on the Internet). If I am not mistaken, some sites that offered CD covers or song lyrics for free had to be closed. Amazon, Walmart, etc. pay some fees in order to display covers and offer music clips on their sites.

Why is it illegal to include, free of charge, the legally backed up copy of a copyrighted CD when one sells the original CD, rather than destroying the backup copy? If it is legal for me to create and possess a backup copy when I owned the CD, and it is legal for the person to whom I sell the CD to make their own backup copy, then why is it illegal to include (at no cost) MY backup copy instead of destroying it, when they have the right to THEIR OWN backup copy? It seems to me that WHO makes the backup copy is pretty irrelevant, so long as there is only one user in possession of the materials?

Also, there is absolutely no way I would "get in more trouble for charging more for the CD's just because they came with the digital backups" since nobody is required to sell discs for a fixed price. I could charge twenty-three cents or $80,000--it doesn't matter. So long as I state that I am selling the ORIGINAL CD and I am including the legal backup copies (free of charge) as I am legally obligated to ensure that the backups remain "tied" to the original CD's...whomever owns the originals has the rights to (and therefore can legally own) the backup copies.

Free album art, incidentally, is usually incomplete and is of craptastic quality.

Yes, I would indeed have to delete any digital backup material I possess once I sell the original. This would entail erasing files from my hard drive, but as far as the digital "hard copy" goes (actual cd media containing backup material), I simply would have to turn it all over to the new owner and keep no copies for myself.

I am not aware of any exception in the copyright law that would grant a right to distribute(freely or for compensation) a copy of an original copy, unless that copy fell under the provisions made under the American Home Recording Act (which it definately will not if the copy was made on a computer) or the transferrance of a copy of a copy is specifically permitted by the copyright owner.

Now, what you propose may be legal, but I think that depends entirely on the legal definition/state of these copies when distributed with the original(which is something I am not familar with). You could ask an attorney via e-mail at http://www.eff.org/ . They will likely answer your question in great detail.

-Chris

So, using that line of thought, people are effectively prohibited from legally backuping their discs if they cannot do it themselves, since the backed up disc would have to be transferred (distributed) from the backup-maker to the owner. To me, this seems absurd...

Something absurd in the law? How suprising...

-Chris

LOL

I ask a lawyer for an answer to a legal question. Everything else is usually uninformed but well-meaning opinion. Would you ask a lawyer about codecs? I doubt it. Why ask codec people about law??

Well, like I said before, I am not really all that serious...I just wanted to get a bit of feedback about the concept...besides, I can't afford to pay any more lawyers right now...my bankruptcy was expensive enough!

AFAIK, at least in France, including a 1:1 copy of the CD-DA as a backup along with the original CD would be legal, but including a ripped backup (with FLAC files for instance) would be different: it would be considered to be a new edition of the album, which isn't legal. The owner of the original CD is free to do whatever he wants with it, but you're not.

For instance, I could sell a discography with a dozen original CD's, and include in the sale the ripped files on a DVD-R. One could consider that I am in fact competing with the original publisher by making a derivative product they could sell themselves.

Edit: in other words, unauthorized reproduction is illegal, fair use being an exception concerning only the span of your own home (still in France). On second thought I don't think including an exact copy on CD-R would even be legal. The right holders licensed the works explicitely to certain publishers for certain formats: CD-DA, DRM'ed files on iTMS, etc... You can't just sell non-DRM'ed FLAC files along with the CD when there are both CD-DA and DRM'ed iTunes songs out there. In any case, ask a real lawyer.

I understand the concept of the 1:1 copy, but there is actually no way of EXACTLY duplicating an audio CD. The differences may not even be in the audio tracks, but differences will be there nonetheless. There is, therefore, no effective difference in a so-called "1:1" duplication and the ripping and compressing of audio to a lossless format, such as FLAC. Of course, ANY lossy audio compression scheme is another story, at least with respect to this argument.

But then again, we can make audio tapes of our CD's to listen to in the car (indeed, we have been for the past 25 years). Obviously, the recording industry has not yet been put out of business by the compeition it has received from audio cassettes. Probably because they are so easy to screw up, they degrade every time you listen to them, and they are of vastly inferior fidelity. However, they did lobby for, and receive, a "tax" if you will on the sale of every new blank audio cassette, to help offset the expense of all the piracy that audio tapes encourage. Yeah. Whatever. In fact, they did the same thing when home stereo component CD recorders became available. You pay a premium for so-called "music" media which will work on your stereo CD recorder to help keep the recording industry afloat, since you are contributing to its downfall by using recordable music CD's. They apparently were not successful in adding a recovery fee to the "all-purpose" data CD's for computer CD-R/W drives, however. Pity...

And what about mp3's? Or WMA's? I don't care how good they sound...they are still incredibly lossy and do not come close to the original waveform quality recorded on the commercially stamped disc. These are hardly "competition" in any serious way for the recording industry.

And what about royalties from the sale of used CD's? No matter how many times the disc changes hands, the artist got paid only once for it (when it was purchased new for the first time). In this respect, just selling a used music CD by itself is essentially cheating everyone involved in its production out of a share of the potential profits. The recording industry once tried to take issue with the resale of CD's, but, as I recall, gave up completely as there is simply no feasible way to track every disc made in the US every time it changes hands. But I guarantee that the recording industry would love it if they could find a way to license (and enforce) the rights to listen to a particular recording on a per-person basis. I'm sure they are pursuing this possiblity at this very moment. On the other hand, if you were to license music on a per-listener basis, it would stand to reason that once one has purchased the rights to hear an album, the particular format that one is allowed to partake of should be immaterial. Why should I have to pay for a crappier version (mp3) of something I already own on CD (waveform) just to be able to listen to it when I go jogging?

Now you're just ranting... :-/

It may be ranting... but it is all true (referring to the fact that laws are often illogical)

including album art should be legal as long as it's just a scan of the CD cover, if the image was aquired elsewhere then no

what was proposed about giving the backups away with the purchase of the original should be legal, just like using a p2p network to download a song that you have the CD for should be legal.... but the 'industry' likes to say "that's not your backup, it's somebody else's"

and it should be legal for me to take a 100 pack of CDRs and use each of them to make a backup of the same CD (100 backups) and should still be ok under fair-use (wtf is this 5-7 copies BS)... one for my car, one for my other car, one for each of my 5 portable CD players (i dont actually have all of this btw), one for the cd player in my kitchen, living room, office, den, basement, one in the attic, one in the shed, another in the garage, etc. etc. It might sound obserd, but it's still fair-use

and if I'm not mistaken... things like the DMCA just say that circumvention of EFFECTIVE copy protection is illegal.... well, if I can make a copy, it isn't very effective now is it?