Converting Formats Should Be Legal
This is the official stance of K.A.P.A. (Karaoke Anti-Piracy
Agency...essentially the RIAA of the karaoke world):
If I own my own discs, can I load them onto a hard drive to play
them in a show, etc.? No, you MAY NOT load songs from other
manufacturers on your hard drive. The licensing rights for music
on a hard drive machine exist only between the machine
manufacturer and the music provider. These rights do not extend
to the owner of the machine, to load songs from other
manufacturers on the hard drive player. Copying the discs on to
a hard drive is still copying the discs. Legally, it is
absolutely no different than burning a copy of the discs. In
order to copy your discs on to your hard drive, you have to have
the written permission of the company that produced the discs
and owns the copyrights.
On this page I will attempt to convince you that format
conversion should not be a crime and that businesses should be
allowed to convert a phonorecord (That's the legal definition
for a song) from one format to another. I am not making a case
for piracy, the legitimacy of Peer to Peer networks, nor serial
copying, but rather the simple process of encoding a compact
disc to a compressed digital audio format like MP3. With piracy
and serial copying, the artist is not paid for their work. With
format conversion, it is assumed the work being converted was
legally purchased, and thus the artist was paid his share of the
royalties.
We'll begin with a little bit of history on the DJ industry.
When the DJ industry first started, vinyl records were the most
popular medium for their performances. How ever, these were
heavy and easily damaged. Because of their weight and cost, many
DJs only brought a few hundred records to a performance and much
money was spent replacing records that hard worn out or become
scratched. While this was good for the record industry, it was
bad for consumers because it increased the costs for the DJ
which were then passed on to the consumers. When the cassette
tape was introduced, most DJ's began using them instead because
they were lighter and more durable. It was impractical to copy
records on to cassette tape because the noise of the record
(especially if it was worn) combined with the tape noise made
for a poor quality recording. While tapes were more durable than
records, they too wore out. Again, this was good for the
recording industry because it meant that DJs would have to
purchase the same record they already owned in the cassette
format. Of course, this cost was passed onto the consumers
through higher prices charged by DJs. When the CD came out, DJs
switched formats again. They now had a digital medium that
wouldn't wear out no matter how many times it was played. It
weighed less than a tape, and it offered the ability to find a
particular track as quickly as DJs used to be able to with vinyl
records. Now instead of bringing a few hundred records, or
several hundred cassettes, DJs could bring one or two thousand
CDs. This meant DJs had a consistent product and a wider
selection of music than a band, so not surprisingly DJs are now
the entertainment of choice at weddings and parties.
Now enter compressed digital audio. Most people are familiar
with MP3, so I will use that term in place of compressed digital
audio, however most DJs use other better compression formats
than MP3. With the MP3 format, DJs can store not just one or two
thousand CDs worth of music, but hundreds of thousands of CDs.
Since MP3's are digital, they never wear out, and because they
reside on a computer hard disk, they never get scratched. In 50
years they will sound the same as they do today. They take up
less room because they are inside the PC, and not spread out on
a 3 foot by 6 foot table. They are lighter because they are not
a physical "thing". And since computers are really great at
sorting information, requested music can be found instantly by
the DJ instead of forcing him to search through thousands of CDs
to find that one particular CD that has that one requested song.
Compressed audio is a godsend for the DJ because it means he
never has to replace a disc/cassette/record, he has less to
carry, he can offer the widest selection of music possible, and
reduce his cost. This is great for consumers because lower costs
mean lower prices.
Some argue that compressed audio does not have the same sound
quality as a CD, and I have to agree. However, it takes a very
good ear and a good set of speakers to detect a difference
between a high quality digital encoding and a CD. In a large
hall filled with celebrating people the two are
indistinguishable. Further, I would point out that CDs do not
sound as good as a high quality analog recording like a vinyl
record, but the public still embraced compact discs with open
arms. The public seem quite happy with a good recording that is
more durable than a great recording that degrades.
Unfortunately, as with every invention that threatens the status
quo, it is illegal. Currently disc jockeys who convert a CD to
another format (including another CD) are breaking copyright law
because such a conversion is not considered "Fair Use". The
courts use four factors set forth in section 107 of the
Copyright Law to determine if a use is "Fair Use":
1. The purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes.
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation
to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value
of the copyrighted work.
In the case of Disk Jockeys, the questions would be answered as
such:
1. Commercial use for private performance. It is a private
performance because Joe Public can't simply walk into Jane Doe's
wedding without an invitation, nor can he attend ACME Corp.'s
company Christmas party unless he works there, but because the
disc jockey is charging for his service, it is a commercial use.
2. The nature of the copyrighted material is a creative work.
Creative works are typically afforded a more restrictive
definition of Fair Use than informational works like
dictionaries and encyclopedias.
3. The entire work is used in the format conversion process.
This should be seen as a plus, since the disc jockey is not
altering the work in any way. The DJ is faithfully reproducing
the entire work as intended by the artist.
4. The effect of this conversion increases the potential market
for and the value of the copyrighted work. By allowing disc
jockeys to convert formats, they will be able to carry more
music to a performance, and potentially bring the artist more
fans and ultimately more fame and money.
To add this all up, the fact that it is commercial use of a
creative work argues against fair use, but the fact that the
entire work is used and its use potentially increases the market
for the artist should outweigh the negatives. The fact that it
is a private performance is fairly neutral.
Another reason it is illegal is because the CD is not consumed
during the process of conversion, so by nature of the process
one is left with 2 copies of the recording instead of the one
that was purchased. In theory the DJ should pay for that second
copy. Unfortunately, no method for paying for this second copy
is available, and since many DJs would rather have the music in
digital format than CD format you would find them selling the CD
after making the conversion which would hurt record sales even
more since you would now have a glut of discs flooding an
already battered market. This would be legal if the DJ were
forced to pay for the copy, as the original CDs carry the Right
of First Sale (which means you can sell it at a garage sale,
sell it on eBay, or trade it in at a used music store). Having
the DJ pay for the created copy would imply its legitimacy as a
legal copy in and of itself, and thereby imply the Right of
First Sale to it as well.
"What can I do about this?" If like me you feel that the music
industry is trampling your rights, contact your state senators
and representatives and let them know that your vote is more
important than the money they get from the music industry's
special interest groups.