Yes, or no, is format shifting of copyrighted recorded audio material (LP to tape, or tape to MP3 format, or cd importing to iTunes/compressing into MP3) legal in the USA?
If so, then by logical reasoning wouldn't it be legal to import a cassette tape I own into iTunes?
For personal home and iPod use only. no distribution
Has there been a definitive court case answer re: space/format shifting in the USA?
I contacted the publisher (regarding something else that i do need permission for) and they replied it's a violation of copy for me to convert the tape i own into a digital format. Are they correct? I think it's 100% legal for me to convert the tape to MP3. Retain copy of the tape.
It has been out of production for over 30 years and was never recorded in any type of digital format.
Intellectual Property Law Attorney
No, but yes.
No: It is per se a violation of copyright to "format shift" a sound recording that you own, from CD or cassette to MP3. This action is an unauthorized reproduction of a sound recording owned by someone else. Because you went and asked for permission, and were denied, you even -know- that it is unauthorized.
Yes: in a case about Betamax video tape recorders, the Supreme Court said that "unauthorized home time-shifting of [publicly broadcast] programs is legitimate fair use," and that "a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited," which means in plainer language, you may make one copy of a public broadcast for private personal non-commercial use. Extending that reasoning just a little bit, then maybe it is also "fair" to make an unauthorized copy of a sound recording you already own, solely for personal use. But where's the limit? asks any competent lawyer. What if you then go on to re-sell the copy you copied? Most people will agree that this changes the character of what you have done, making it a commercial use that must be prohibited (punished).
The Betamax case is the definitive case on "shifting" copies made for personal use.
You are not my client. I am not your attorney. The above comments are not confidential, not "legal advice", and not "legal opinion". I am licensed as a patent attorney and in the State of Connecticut. Retain and consult an appropriately licensed attorney to identify the laws and facts material to your concerns.
Intellectual Property Law Attorney
This is the second time you've asked this question [ http://goo.gl/thOkU ]. The answer remains the same: Yes, it's lawful to copy a copyrightable sound recording from one device you own to another device you own if the second copy is for your personal in-home use.
One relevant statute is 17 U.S.C. §1008 [ http://goo.gl/pZ8Pf ]. A case that applies that statute to the then-new Rio mp3 player is Recording Industry v. Diamond Multimedia Systems, 180 F. 3d 1072 9th Cir.1999) which also reports the relevant legislative history: “In fact, the Rio's operation is entirely consistent with the Act's main purpose — the facilitation of personal use. As the Senate Report explains, '[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use.' S. Rep. 102-294, at *86. The Act does so through its home taping exemption, see 17 U.S.C. §1008, which 'protects all noncommercial copying by consumers of digital and analog musical recordings,' H.R. Rep. 102-873(I), at *59. The Rio merely makes copies in order to render portable, or 'space-shift,' those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (holding that 'time-shifting' of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.”
A case that discusses the “fair use” right to space shift movies and music from one medium to another for personal, noncommercial use is: Realnetworks, Inc. v. DVD Copy Control Ass'n, 641 F. Supp. 2d 913 at 942 (“Against this backdrop, the court appreciates Real's argument that a consumer has a right to make a backup copy of a DVD for their own personal use. … As noted above, the DMCA's ‘user exemption’ is only for the individual who has gained authorized access and who may circumvent the protection measures pursuant to lawful conduct, such as to make fair use of the subject work. … So while it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.”).
As for those who steadfastly object to fair use copying of music and movies for personal in-home use they should heed the words of former RIAA attorney Don Verrilli (now our Solicitor General ) who had this to say to our Supreme Court during oral arguments in the MGM v. Grokster case: "And let me clarify something I think is unclear from the amicus briefs. The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod. There is a very, very significant lawful commercial use for that device, going forward." See http://goo.gl/Odz7S at p. 11 line 25 and p. 12 lines 1-7.
Hmm. That's pretty clear. I take Mr. Verrilli and the recording industry at their word that the record labels not only acknowledge and agree that space shifting is lawful, the reproduction of a sound recording for personal in-home use is literally the rationale that JUSTIFIES the uploading functionality of mp3 players such as the iPod.
So we have a STATUTE that says making backup copies are lawful, we have Congress EXPRESSLY spelling out in its legislative history that making backup copies are lawful, we have cases that HOLD that making backup copies are lawful, and we have the recording industry ADMITTING that making backup copies are lawful and, moreover, that such fair use is why the iPod is lawful.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.