The old 'private copy' confusion has been the cause of much debate in US blog land this week following legal papers submitted by the Recording Industry Association Of America as part of a P2P lawsuit being pursued through the Arizona courts.
The debate follows the RIAA's response to a question by the judge considering the case which asked if the digital copies of the tracks the defendant is accused of distributed - which had been ripped off CDs - were in themselves illegal. ie Was the defendant guilty of not only illegally distributing the music, but of distributing illegal copies.
The RIAA's answer to that question was a bit vague, but essentially said "yes"; because the tracks shared were ripped from CD without permission, they were illegal copies. The response has got the techy bloggers blogging because it differs from the industry association's response to a similar question in the famous MGM v Grokster case, in which they seemingly played down the illegality of transferring music files off CD and onto a PC, stressing that it was the subsequent sharing of those files from a PC via P2P that was illegal.
Of course the seeming inconsistency comes about because in the US, like in the UK, the ripping of music off CDs for use on a PC or MP3 player is, technically, illegal (even if the ripped music is only used by the person who owns the CD), but at the same time no record label is ever going to sue anyone who does so, even though they could.
That situation makes for a rather unsatisfactory situation where consumers can (and regularly do) transfer music from their CD collection onto their PC and MP3 player not because copyright laws entitle them to, and not because the record labels have formally given them permission to, but because there's an informal understanding no record label would ever sue someone who does so, providing the music is only ever for personal use.
In some countries, of course, that situation does not exist because a levy system is in place where a special tax is charged on all blank cassette and CDR purchases which is passed back to the music community and in return for which consumers are given permission to make personal copies of CDs they have bought. That system, though, was never introduced in the US or UK and, anyway, has become less effective of late because people are increasingly copying music to PCs and MP3 players rather than cassettes and CDRs (leading to campaigns in some countries to have a similar levy added to MP3 players - the so-called iPod tax).
In the UK, where no such levy exists, former BPI chief Peter Jamieson once admitted to a parliamentary select committee that record labels were unlikely to sue anyone who made personal copies of CDs. While that statement has not legal authority, if a record label ever did decide to break ranks and sue someone for making a personal copy, it could no doubt be used as part of a legal defence. But nevertheless, the situation remains somewhat blurred here as in the US.
None of which really matters day to day, except when the RIAA is asked to clarify the situation in court, like in this case, and in doing so - because of the slightly messy state of the law in this domain - it provides more ammunition for those who want to portray the major record companies and their trade bodies as being evil and anti-consumer. For PR reasons alone, I suspect the majors would do well to just officially grant customers the rights to make personal copies, though doing so would, of course, provide a tricky challenge in those countries where the levy system exists. And no doubt record label chiefs fear that they may live to regret such a bold move in the future. Which they might, I suppose.