Music-copying laws often shield consumers
By Will Rodger, USATODAY.com
Anyone who has ever made a tape of a CD or record for a friend has read this warning: "Unauthorized duplication is a violation of applicable laws." But is that true? And what laws are these anyway?
Consumers are increasingly asking themselves such questions in light of recent legal proceedings against the music-sharing Web site Napster. Legal briefs in the case are scheduled to be filed in federal court later this month.
Legal experts say they know of no company that has ever taken a consumer to court for giving friends copies of his favorite songs. The recording industry sues only those who try to sell and distribute pirated music for profit, the experts say, and copyright law is so vague that it's unclear at exactly what point casual copying becomes illegal.
"No one is entirely sure," says Peter Jaszi, law professor at American University and an adviser on copyright issues to the Library of Congress.
"It's so flexible that one can't answer in generalities," says Cary Sherman, general counsel to the Recording Industry Association of America. "Each case is looked at based on particular facts and circumstances."
"There certainly is some category of home taping that is fair use," or legally permissible, music industry lawyer Steve Metalitz says. At the same time, "it is probably not legal" for a consumer to hand out 100 copies of a copyrighted CD to his friends.
Criminal charges for copyright violations are limited to commercial enterprises and those cases where the value of pirated material exceeds $1,000.
In any case, Metalitz says, lawyers and courts continue to disagree on where permissible recording ends and piracy begins.
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Regardless, legal experts on both sides of the issue say, no court has ever held a consumer liable for swapping music with anyone elseFor one thing, the 1992 Audio Home Recording Act shelters consumers from being sued over music they copy at home for their use. Furthermore ? and this is where the law gets ambiguous ? the act also may protect consumers from being sued over music they copy for their friends, legal experts say..
Jonathan Zittrain, executive director of Harvard University's Berkman Center for the Internet and Society, says copyright law is full of such murky areas.
"Fair use is notoriously impossible to get ahold of until you actually go to the judge to find out what the judge says, and even then you probably aren't very happy," he says. "There is simply no way to know what fair use is and isn't."
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"No sane industry ever wants to go to war with its customers," Boies says. "Hilary Rosen (president and chief executive officer of the Recording Industry Association of America) herself has said it's 'cool' for consumers to make tapes and share them with their friends. 'Cool' in any lexicon does not mean illegal."
For years lawyers on both sides of copyright law have fought their battle over narrowly defined legal ground. Congress and judges alike decided what was and was not legal based on specific media.
The earliest rulings gave book buyers and libraries the right to lend their books to others, overruling publishers' opposition. More than 100 years later, the Supreme Court irked Hollywood when it ruled that consumers may tape TV shows and movies for their own use.
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