What to do with 1,200 CDs I don't need

I'll echo Prpixel here and add in a moral view.

Mine are boxed and stored--both as a secondary backup to my RAID array *and* because, in my naive view, selling them would be wrong. As much as I will rail against the RIAA for the copyright positions and actions they are taking and as much as I believe the record companies are fat cat dinosaurs who can't adapt their business to reality, making a copy of something you don't own deprives the underlying artist of royalties. I'm all for fair use and think DRM is anti-consumer, but making an exact duplicate and then selling the original doesn't seem like fair use.

It is a pretty odd situation for me to be advocating for the RIAA, since I think their views on the whole copyright thing are pretty deplorable. The RIAA (not me) takes the position that ripping a CD is illegal period--they seem to have written fair use out of the law. I believe they also take the position that resale is not legal, but can't say for sure.

The concept here is that buying a CD transfers to you a recording of certain music and a license to listen to it under specific circumstances. It doesn't, for example, convey the right to use the recording for public performances. Just for personal use. I believe fair use extends to making copies for personal use--backups, a copy on a hard drive, etc.

I also happen to believe that you should be permitted to resell the recording and the license if you don't like it. But, once having sold the license, your right to listen to that particular recording is sold as well, hence you have no right to listen to copies that previously were justified under fair use.

I guess--for me--the moral point comes down to the the fact that if I make a digital copy and resell the original, the implication is that I like the music. Under those circumstances, I want to support the artist, for whatever pennies-on-the-dollar they get off a CD. Face it, if you can justify making a copy and reselling the original, why stop there? Make a thousand copies and sell those. What is the moral difference if you abandon the concept of a license?

It is hard for me to make too much of this point, however, since in my earlier days I bought a lot a second hand LPs, some clearly labeled "not for resale." But, having thought about exactly what you are talking about in the context of 1500 ripped CDs, I started having some qualms about what exactly it was that I was supporting. YMMV.

Zaikesman-

The number of CDs produced is a red herring--its the number that are sold that counts to the artist. And, I think "like" is part of the moral equation, at least to the extent I was using "like" as shorthand for "being part of the universe of consumers who would pay for a particular recording"--i.e., a sale.

Pretend you could not copy CDs. Say for CD X there is a market of 1,000 buyers. Say you are one of the 1,000--you bought it and you like it. The artist gets royalties on 1,000 sales, right? Doesn't matter if there are 1,000,000 produced, right?

Now assume you can create perfect CD copies. You are one of the 1,000 who buy the CD and, again, you like it. You buy it, copy it, and resell it. Presumably the person who bought it is one of the 1,000 as well. So the artist only gets royalties on 999 sales. Now say instead of just you, everyone who buys and original does what you do. Now the artist gets royalties on only 500 sales. *That* is why I say it is morally wrong.

[I take your point about resale, but think about it... You buy the CD, don't make a copy because you don't like it, and resell it. The artist still gets royalties on all 1,000, because you aren't one of the 1,000 who would pay for the album. No harm.]

That being said, I was a kid and did what you were talking about--I bought cut-out LPs and promo copies (which don't generate royalties for the artists) and made tapes for friends, and they made tapes for me. But, this is a digital world, which changes things a bit in my mind. First, you can make exact copies. Second, you can make a lot of them. Third, it takes no time. This means that, unlike before, copyright violation is now possible on a massive scale by Joe-Bag-O-Donuts. In aggregate, I tend to dislike the idea that massive copyright violations will impact new artists ability to get recorded and be introduced to the public. Even if you don't care about the legality of the thing, think about the impact on music and artists if everyone behaves in the manner you seem to be advocating.

With all that said, I think the better solution is probably for the recording industry to adopt a business model that is more in tune with the times.

Zaikesman, have you never bought a CD--whether because you liked the album art, liked a different CD by the same artist, got a recommendation--and then discovered you thought the album was crap? I've got no issue with returning a CD like that or reselling it. But, in that case, I'm assuming you are *not* copying it--the premise is that you don't like it. In other words, just because you ponied up and shelled out bucks for a CD doesn't mean you are one who would knowingly pay for the album--one who believes what they got was worth the price paid.

My point was that it is the number of sales that is important to the artist--a "sale," in this case, meaning someone who buys it and is believes what they got is worth the price. If you buy it, and discover you don't like it, or don't believe its worth the price, you can return it or resell it. The implication is that you are not one of the universe of people willing to pay money for that album. Hence, your resale does not impact the market for the CD.

Your premise seems to be that it is morally legitimate to buy an album, copy it, continue to listen to it, and resell it (it is clearly not legal, but that is a different issue). You are taking the benefit of the artist's work and not paying for it. [You can argue about "well, I'm paying because I get less on the resale market," but how is your argument different if you buy a CD, copy it, and then return it for full price?]

"My contention is that the person buying the used CD would not have bought the new CD in the first place."

Why? An economist would disagree. At a minimum, you have deprived the seller of the right to sell at that price.

"I paid for it and the artist got his fair cut."

Yes, for *you* to listen to the tracks.

"Just because I got $2 when I sold the used CD I should erase my ripped copy?"

Yes. As a legal matter, you just sold your license to listen to it. As a moral matter, your sale deprived the artist--under economic theory--of a sale. I can see your argument now--"but that person would only buy it for $2, not for full list price." Well, it is the decision of the seller to price it where they believe the market lies. If they have captured the $16 audience, they could drop the price to $12 to capture additional buyers. And so on, down to the $8 buyers (just because you sold for $2 doesn't mean that the CD gets resold for $2--more likely $8 or $10).

And, can't your argument be extended to filesharing of copyrighted material anyway? "Oh, they wouldn't have bought it anyway." Too facile. [BTW, file sharing is not bad per se. Same mistake that RIAA made. File sharing of copyrighted material to circumvent ownership is bad. Don't condemn the technology, condemn the criminals.]

Try it this way. You are a talented guitar player, and make a CD in your basement. You play shows, and sell the CD for $12 a pop. You have 6000 boxed up in the basement, and sell maybe 100 per week. Not a bad gig.

You do a show, and find some guy next to you selling the CDs you made on a "used" basis for $8. You ask where they came from. You call the people that sold them. They say "well, I copied it and resold my original." Are you pissed?

You argue with the guy selling the used CDs. He says "well, I'm not messing with your sales, because the people who buy from me, while they would shell out $8, aren't willing to shell out $12. So, you aren't losing any sales." So you say, "well, it is my right to set the price where I want; in fact, I was thinking about dropping the price to $8, but you have taken some of those customers away." He says "tough nuggies, you should realize that this is going to happen and build that into your initial pricing strategy." So you say "really, so my initial customers have to pay more so that I, as an artist, can get what is due to me because of people violating my copyright?"

I personally think that kind of sucks. YMMV (your morals may vary).

Well, enuf of non-lawyers debating the issue. Here's a link to a bunch of lawyers debating the issue. They end up in the same quandry:

http://williampatry.blogspot.com/2005/10/first-sale-hard-copies-and-digital.html

Without getting hypertechnical, Section 109 of the (c) Act authorizes the resale of copyrighted first-sale works. Fair use authorizes the making of copies for personal use. Because the original isn't a copy, the argument can be made that you have made a legitimate copy, and still have the right to sell the originals. The countervailing argument is that the courts are going to look at your copy, and as part of their fair use analysis, contemplate your sale of the original work and decide your copy isn't fair use.

Bottom line, I wouldn't want to be you if the RIAA comes knocking on your door. Thank god they don't have that power. Yet. B'sides, my point is more the moral one. Is it right?

Meisterkleef, I don't understand your logic. If there are 100 people willing to buy an album, and you are one of them, doesn't the fact that you resell yours after copying mean that there are only 99 "first" (as opposed to resale) sales? Aren't the number of first sales the ones that generate royalties for the artist? Haven't you just deprived the artist and taken money out of his pocket?

Sure, you can say they could buy the CD from another reseller, but that is just an induction problem. Either that other resale copy is legitimate (i.e., a resale w/o copying, which does not change the number of buyers) or an illegitimate resale. If its an illegitimate resale that couldn't be stopped, then if you sell yours resale there will be 98 royalty generating sales instead of 99 and I submit the problem is worse. You still contribute the a decline in the royalties paid to the artist.

If you are morally right, then what is wrong with establishing a collective to buy a CD, with the agreement that each person makes a copy and then sells it to the next person? Why not make that chain 100,000 people? Why not make it anyone interested? Would that not alter the royalties paid to an artist?

And, I'm *not* talking about eliminating the used market. If you want to sell your CD, fine. Just don't think its right to keep a copy and still listen to it.

Zaikesman-

For a more complete discussion of the state of the law, look at the link I previously referenced. Your copy is "legal" because the making of that copy is generally regarded as fair use. The first sale provisions protect your right to sell the original, but I don't think anyone would claim that the copyright act is really abreast of the times. The "gray area" here is whether keeping a copy made under fair use and then selling the original is legal or not and, independent of that, whether or not it is morally right or wrong.

I'm not in a position to tell you it is legal or not. My personal view is that if you got hauled up in front of a court, the court would find some way of deciding that repeatedly copying and reselling different CDs probably violates fair use. Making a copy for personal use and then 10 years later giving away the CD--probably fair use.

And, I would submit that the RIAA probably *is* concerned with this. They have gone after people for all sorts of reasons, and if they found a bunch of digital copies of music on your computer, you better bet you would end up in court. Remember, the RIAA takes the position that even ripping for use on an iPod--whether you keep the CD or not--is illegal. It is all kind of irrelevant whether you would win in the end anyway. Given the vagaries of the law and the well-heeled nature of RIAA, you would probably go bankrupt defending yourself. My recollection is that they generally estimate about $250K to take a case to the Court of Appeals with decent counsel.

Putting aside the legal question, I happen to think it is wrong. You keep saying "they got the money for the CD I bought," and think that justifies your actions. But, neither the record company nor the artist got the money from the sale they didn't make--the sale that they should have made but for the fact that you pre-empted them by selling yours. This is not an indictment of resale--selling it without keeping a copy. There you aren't depriving them of a sale, because you are not a consumer who is willing to pay for what you got. In the case where you are keeping the copy, the inference is that you like it and will continue to listen to it, so you are among those who should pay to hear it.

The other recurring thing I see in this thread is people's view that "heck, I'm just one person, this isn't my problem, my contribution to the situation is negligible." That, in my mind, isn't an answer to the moral question of whether it is right or not. It may be the way you rationalize doing something that is wrong, but it doesn't make it right.

One of the core problems here is that the term "fair use" is not black and white:

(i) The RIAA interprets fair use *not* to include any of the activities you have discussed, Onhwy61.

(ii) On the other hand, legal scholars seem to interpret most, or all, of the activities you mentioned as fair use.

The theft/loss thing is a red herring. I cannot fathom a judge that would say subsequent loss or theft of a CD that has been copied to render an otherwise legitimate copy not to constitute fair use.

The gray area here is copying with the intent of continuing to listen to the copy, and then reselling the original. It is the essence of infringement to copy an *original* and sell the *copy*. The difficulty in a digital age is that it is quite possible to make a copy that is an exact duplicate of the original (album art is a red herring too--that can be copied as well), so the practical distinction between the original and copy is nonexistent. Is there a legal distinction between the original and the copy? Yes, the first sale provisions of the copyright act make that clear. Should there be a distinction in an era where exact duplicates can exist? Probably not in my mind.

If you read the legal debate, the problem is that legal scholars seem to be flummoxed by the notion that a subsequent act could render a prior act not fair use--the typical interpretation of the law is that the act of copying is either fair use or it is not. What you do later should not change that analysis because its the act of copying itself that is legal or illegal.

However, the legal debate also ends up being very fact dependent. I can easily construct a case where a judge would--in all likelihood--find an instance of copying and reselling not be be fair use. If I buy a bunch of CDs, copy them, and resell the originals and there is a clear, documented intent on my part to buy them with the intent of copying them and reselling them, I would bet a judge would find that my acts of copying are not fair use. I can also construct a scenario that goes the other way--if I buy a bunch of CDs, copy them, and 10 years later give a couple away, I doubt very seriously that any judge would determine that my copies are not fair use.

Just because the actual terms of the copyright act haven't caught up with the digital age, however, does not mean that what you are doing is *right*. What is right and what is legal are entirely distinct. If there is no practical distinction between an act that is infringement (copying an original and selling the copy) and an act that may or may not be infringement (copying the original and selling the original), and we agree that infringement is bad, then it seems to me that the law misses but morality shouldn't.

"The RIAA is not a consumer advocate group."

Amen to that. Frankly, kind of makes me queasy to even state their arguments, even if I do so with attribution. Just read another thread where they are suing a family for illegally downloading material, and the family doesn't even have a computer. The fact that the family just moved into the house in question doesn't seem to enter into the RIAA's analysis.

I'm a huge advocate of extensive fair use rights and think DRM is anti-consumer. Don't even get me started on video technology... Here I'll put in a plug for EFF--the Electronic Frontier Foundation--at http://www.eff.org.