My friend David is a composer and philospher. One of his favorite puzzles to pose goes as follows:
“Philip, what if I were to give you $100. Would there be anything illegal about that?”
“I don’t think so.”
“Well, how about if I asked you to sleep with me? Would that be illegal?”
We were in New York City so I answered “No.”
“Well then, why should it be illegal for me to ask you to sleep with me for $100?”
After assigning an in-class exercise of normalizing a data model for an MP3 file sharing system, I asked the students present a few questions:
“Is it legal to hook up a tape recorder or CD burner and make copies of CDs that you own to play in your car?”
Nearly everyone thought this was legal.
“How about if you go over to your friend’s house? Is it legal to hook up your recorder to his stereo and make copies of his CDs?”
Nearly everyone thought this was illegal.
Let’s step back a moment and look at the law. There are a lot of special laws that were passed at the request of the record companies. Some time in the 1980s they got Congress to make it illegal to rent music CDs (USC Title 17, Chapter 1, Section 109). This is why you can find a corner video rental store but not an audio rental store. (This statute applies only to commercial rental, which is why you can find CDs at the public library.)
Home taping was always in legal limbo. Record companies claimed it was costing them $billions. Most consumers thought it was fair use. Record companies hadn’t yet developed their brilliant business strategy of suing 12-year-olds and therefore there was no judge to establish a precedent.
Then came the early late 1980s and the new threat of digital audio recorders. The record companies wanted the Federales to collect a tax on all the blank digital audio tape sold and give them the money. Never mind that 99% of the DAT tape sold was used by artists recording their own music or computer owners backing up data. Congress and George H.W. “No New Taxes” Bush gave them the new tax. However, in order to avoid the appearance that the U.S. Congress was a wholly owned subsidiary of Sony Records, they slipped in a note clarifying the status of home taping:
“No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” — US Code, Title 17, Chapter 10, Subchapter D, Sec. 1008 (also see its legislative history).
You could tape away to your heart’s content as long as you weren’t doing it for money. You could make a tape for your friend, even an analog tape that wasn’t subject to the new tax.
Napster tried to defend itself under Section 1008. Its users were sitting at home making audio recordings for personal use. They got slammed by the courts because the devices being used, desktop PCs, were held to be not covered by this statute, i.e., a PC is not a “digital audio recording device”.
In the bad old days of Napster you kept your MP3 collection on your desktop. Today, however, an MP3 jukebox with enormous capacity can be purchased for $200. It won’t be long now before average people carry around their entire music collections on their cell phones.
Consider this scenario. You are sitting at Starbucks and see a friend. He is not inside your Starbucks but across the street in the other Starbucks. You walk across the street. Both of you happen to have your MP3 jukeboxes your pockets. He says “Have you heard the latest Britney Spears song? It reminds me so much of the late Beethoven Quartets with some of Stravinsky’s innovative tonality.” You haven’t? Just click your MP3 jukeboxes together and sync them up. Any tracks that he had and you didn’t you now have. You’re using a digital audio recorder; the device won’t do anything except record music. You’re not paying each other so it is noncommercial. Under Section 1008 what you’re doing is perfectly legal in the United States.
Imagine having a party at your house in which 30 people show up. By the end of the evening every person has the union of 30 personal music collections.
What is the point of Internet file sharing when people can, perfectly legally, copy as much music from each other as they could reasonably want? Only a person with zero friends would want to bother with file sharing. Which is why we can now say that the RIAA is the world’s leading promoter of friendship!
[Now that most of Korea and a handful of Americans are hooked up on broadband it is time to ask why people don’t simply email their favorite songs to each other. The last thing that I would want is to be dumped into Napster or its spiritual descendants. I don’t know anything about pop music. What I would want is for my friends who know music and my taste to email me a song every day. If I have 10 music expert friends sending out their favorite song of the day, after a year I’ve accumulated about 200 hours of music. Prediction: RIAA will get a law passed making it illegal to email sound recordings. To enforce the law the RIAA will have the right to read anyone’s email at any time. Encryption of email will need to be outlawed so as to thwart terrorists and music thieves.]