Copying music to CD: the right, the wrong, and the law – CD-recordable devices, copyright law

Copying music to CD: the right, the wrong, and the law – CD-recordable devices, copyright law – includes related articles on the Recording Industry Association of America and the fair use doctrine

Robert A. Starrett

Reporting on CD-Recordable electronic media in general becomes more like studying for a law exam every day. On the surface, the issue of what type of CD-R usage constitutes copyright violations seems a simple one: copying discs containing copyrighted material, such as commercial audio CDs, for re-distribution and sale constitutes piracy, and clearly represents a breach of the copyright holder’s right to protect his or her work.

But what about using CD-R to copy, say, a favorite audio CD, or compiling tracks from various discs in a user’s private collection for an enhanced individual listening experience? What are the copyright issues in that case? What constitutes a consumer’s “fair use” of copyrighted material that he or she has purchased legally? And how significant does such an issue become when the widespread availability of copying capable tools and the newfound cheapness of CD recorders makes the technology accessible to a potential mass audience with exactly such aims in mind?

Determining what the United States Copyright Act has to say about using CD-R in a “home-taping”-type context requires research, interpretation, and time; what’s clear right now, however, is that the proliferation of new tools that make copying audio to CD an end-user-friendly process has got the record industry on the run. The release of Adaptec’s Spin Doctor and Jam, and CeQuadrat’s Just Music, and Elektroson’s GEAR Audio gives the user solid, audiospecific tools for making “greatest hits” or “party discs” from their own collections for private use. The new tools also give those who don’t respect the rights of music copyright holders new opportunities to create “pirate” discs for subterranean sale or gift-giving that deprive those copyright holders of deserved royalties.

While no one will deny that some people borrow and copy music from others and few will argue against the rights of artists and record companies to make money from the materials that they produce, the majority of disc copying is done by individuals who want to have a convenient mix of songs on a single disc, extracted from CDs, tapes, or LPs that they already own. But if there are laws, rules, guidelines, or ethical considerations governing the copying of music–even for private use–few users are aware of what those laws are and how they can or should be applied.

What is right and what is wrong.? What types of copying are permissible and what are not? The answer–no surprise–depends on who you ask.


The Recording Industry Association of America (RIAA) is a trade association whose member companies create, manufacture, and/or distribute approximately 90 percent of all legitimate sound recordings produced and sold in the United States. The association’s 250 members include such familiar record companies as Warner Brothers Records, Columbia, Motown, RCA, Geffen, and Capitol, as well as many lesser-known record labels. The RIAA was founded in 1952 and among the items in its stated mission is the promotion of strong intellectual property protection and the prevention of music piracy.

According to Cary Sherman, the senior executive vice president and general counsel, the RIAA takes the position that any copying of music to CD that you perform on your computer is copyright infringement. Whether the source is digital or analog, whether the disc is a complete copy of a CD, tape, or LP that you own, or whether it is a compilation of songs from various sources that you own, the RIAA considers making such a copy to be a violation of the right of reproduction granted to copyright holders by the Copyright Act of 1976. They also recognize, however, that Section 1008 of the Audio Home Recording Act (AHRA) of 1992 gives those who perform such copying immunity from copyright infringement actions, provided that the copying is performed on a digital audio copying device as defined by the AHRA The RIAA’s ultimate goal is to require CDR and CD-RW hardware manufacturers to look at the copy-protection bit on an audio disc and refuse to copy if that bit is set to “on.”

Unhappy with the amount of royalties that are returned to the music industry under the AHRA and the implications of more widely available audio CD recording, the RIAA has criticized Philips’ plans to introduce a CD-Rewritable (CD-RW) home audio recorder. The new drive has been designed entirely in compliance with the AHRA, returning a royalty to music copyright holders on each recorder and disc sold and implementing the Serial Copy Management System (SCMS) on each disc recorded, which switches “on” a copy-protect bit on a burned CD copy that prevents users from copying that copy. Philips has in fact gone even farther than the AHRA requires and included a CD fingerprint system that identifies the particular machine on which each digital recording is made. Still, the RIAA has argued that home CD-RW drives raise fresh concerns not addressed in the AHRA. Home recorders like the forthcoming Philips model, the RIAA says, “will add a new dimension to and further aggravate the already very serious problem of CD piracy by facilitating a cottage industry.”

The RIAA’s response is as interesting for its timing as for its alarmist tone, since home recorders already exist and have for some time. The RIAA’s concern more than anything else likely stems from Philips’ announced pricing of $774, which means the company’s drive will sell significantly cheaper than early home CD recorders which have cost users $1800 to $3000. Presumably, the RIAA is also feeling heat from the new Pioneer PDR04 home recorder, which has sold for street prices as low as $899.

The RIAA has also complained that today’s situation differs from the circumstances that led to the AHRA because the home recorder manufacturers did not enter into discussions with the music industry about anti-piracy measures and standards for CD-RW as their counterparts did when digital audiotape (DAT) recorders debuted. It is difficult to see why any discussions would be necessary since the AHRA clearly covers CD-RW already. The RIAA’s ultimate goal is to require CD-R and RW hardware and software manufacturers to look at the copy protection bit on an audio disc and refuse to copy it if that bit is set to on.

On the other side of the issue is the Home Recording Rights Coalition and all those who believe that Section 1008 of the AHRA gives them the right to make and play audio CDs, copied or compiled, from materials that they purchased. The HRRC is a coalition of consumers, consumer groups, trade associations, retailers, and consumer electronics manufacturers dedicated to preserving the consumer’s rights to purchase and use home audio and video recording products for noncommercial purposes. The HRRC was founded in 1981, after a U.S. Court of Appeals had ruled that time-shift videotaping of television broadcasts–taping a show to watch it later–was copyright infringement. The United States Supreme Court later overruled that case, Sony Corporation v. Universal City Studios, commonly known as “the Betamax case,” finding that time shifting was not copyright infringement. Clearly, however, when it comes to copying commercial audio recordings to CD, the jury is still out.


Most music discs contain copyrighted material. The basis of copyright protection in the United States is found in the U.S. Constitution, Article 1, Section 8. The Constitution empowers Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The result of this empowerment is the U.S. Copyright Act, Section 17 of the United States Code (U.S.C.).

A copyright gives its owner the exclusive right to reproduce, distribute, perform, display, or license the work referenced in the copyright. The holder of the copyright additionally receives the exclusive right to produce or license the production of derivatives of the work. According to the Copyright Act, the owner of copyright has the exclusive rights “to reproduce the copyrighted work in copies or phonorecords,” a privilege generally known as the Right of Reproduction. However, the Copyright Act also limits this exclusive right in Section 107 of the Act, which addresses “fair use” of copyrighted materials. Although Section 107 enumerates some of the situations that may be considered fair use–criticism, comment, news reporting, teaching, scholarship, and research–it certainly does not exclude other uses, such as home recording for personal use.

Fair use, sometimes referred to as the Fair Use Doctrine, does not necessarily grant the user the right to copy material which he or she has purchased. Fair use is generally reserved for use as a defense to a copyright infringement action. The criteria set forth in the Act make it necessary for courts to decide copyright infringement issues and fair use defenses on a case-by-case basis, applying the four criteria set out in the Act to the particular infringement alleged in the case at bar.

Section 202 of the Copyright Act clearly states that the ownership of a copyright “is distinct from ownership of any material object in which the work is embodied.” Therefore, the transfer of ownership of any material object, such as a CD, does not convey any rights in the copyrighted work embodied in that object.

Concerning computer programs, the Copyright Act states that “it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program,” as long as the copy is for archival purposes only. This specification seems ill-suited to being applied to computer programs in that it refers to the “owner” of the program and most computer programs are sold under license and no ownership is contemplated or granted. Nonetheless, making an archival copy of a computer program is apparently permitted.


According to the Recording Industry Association of America, that compilation disc that you made for your shindig last weekend is a violation of the copyright owner’s right of reproduction. And the RIAA makes no distinction whether the source of the music is digital or analog. The RIAA’s position is based on the right of reproduction in Section 106 of the Copyright Act. However, Section 1008 of the Audio Home Recording Act of 1992, entitled “Prohibition on certain infringement actions,” states, “No action may be brought under this title [The Copyright Act] 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.”

In other words, hardware manufacturers are free to design, build, and sell digital and analog recording machines and media and the owners of those machines cannot be sued for copyright infringement for making digital or analog recordings of purchased music for non-commercial use, provided that the machines are designed in compliance with the AHRA.

Additionally, the recording of copyrighted audio material can be likened to the recording of copyrighted video material as approved by the United States Supreme Court’s 1984 Betamax case, Sony Corporation v. Universal City Studios. In that case, Universal sought an injunction to keep Sony from selling its Betamax video recorders in the United States.

The road to the Betamax decision began in 1976, when Universal City Studios and Walt Disney filed suit against Sony Corporation, the manufacturer of the Betamax videocassette recorder. Universal charged contributory copyright infringement, based on the argument that home taping of copyrighted television shows and movies for later viewing (time-shifting) violated Universal and Disney’s copyright in those properties. The United States District Court ruled in favor of Sony at the trial. In 1981, the U.S. Court of Appeals for the Ninth Circuit reversed the decision of the District Court. The Ninth Circuit found that home time-shift recording was copyright infringement, and Sony Corporation could be a contributory infringer. The Supreme Court heard the case in January 1983, but did not issue an opinion until its second term, after additional oral argument. In January 1984, the court overruled the decision of the Ninth Circuit by a single vote. In a memo of June 17, 1993, Justice Byron White said that he was “not at all convinced that Congress intended each home recorder of copyrighted works to be an infringer, whether he records sound or video.”

In the court’s opinion, “The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” Quoting the District Court with approval, the court went on to say, “Whatever the future percentage of legal versus illegal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law.” Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use “because there is no accompanying reduction in the market for plaintiffs original work.” Additionally the Court stated, “A use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.”

The Supreme Court’s ruling continued, “Moreover, when one considers the nature of a televised copyrighted audiovisual work, and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, does not have its ordinary effect of militating against a finding of fair use.” The Supreme Court concluded that “this record amply supports the District Court’s conclusion that home time-shifting is fair use.”


Most of us have recorded a cassette tape of our favorite songs from other tapes and CDs. Some of us may have recorded from CD to DAT, or used a home CD recorder to copy an audio CD. But we noticed in that case that we couldn’t copy the DAT to another DAT. This is because DAT recorders are equipped with the Serial Copy Management System (SCMS), a copy-protection technology whose implementation on DAT recordings is mandated by Chapter 10 of the Copyright Act of 1976. This 1992 addition to the Copyright Act, titled “Digital Audio Recording Devices and Media,” and generally referred to as the Audio Home Recording Act (AHRA), was added to establish copyright structures for DAT. It’s unclear whether the authors of the Act had recordable CD in mind; however, the wording of the Act could cover CD-Recordable drives and media in certain circumstances.

The furor over digital audiotape that prompted the passage of the AHRA came out of the recording industry’s fear that digital copying would greatly increase piracy of music because there would be no loss of sound quality as DAT copies went from generation to generation. For several reasons, DAT never became a big hit with home users, and Philips’ Digital Compact Cassette (DCC) has never taken off as a music medium. Since implementation of SCMS prevents copies of copies from being made, the illegal copying and distribution of DATs or DCC wasn’t, in any event, likely to become a problem.

The AHRA refers to “digital audio recording devices” and “digital audio recording mediums,” but does not mention DAT, digital audio cassette, or CD-R by name. It covers musical recordings, but not spoken word recordings. The Act defines a “Digital Audio Recording Device” as “any machine or device of a type commonly distributed … the digital recording function which is designed or marketed for the primary purpose of … making a digitized audio copied recording for private use.” The Act bars the manufacture, importation, and distribution of any such device that does not incorporate the Serial Copy Management System (SCMS) or a functional equivalent approved by the Secretary of Commerce. The Serial Copy Management System is a system that encodes a copy of an original digital recording with information which prevents users from making a copy of the copy. Its implementation in DAT systems manifests itself by allowing the DAT recorder to copy from a CD to a DAT, but that first-generation tape cannot be subsequently copied to another DAT. The Act also bars the importation, manufacture, or distribution of any device, or the offering or performance of any service that deactivates, disables, removes, or bypasses the SCMS. Such devices do exist, however, and the Recording Industry Association of America (RIAA) recently received an injunction against Technolab Digital Systems, Inc., for manufacturing and selling a device known as the DigiCon 2, whose purpose was to circumvent SCMS protections. Circumvention efforts continue, however, and a little rooting around on the Internet will reveal plans for a “SCMS Killer” circuit that you can build yourself.

The Act specifically excludes media and recorders that are “primarily marketed and most commonly used … [for] making copies of nonmusical literary works, including computer programs and databases.” To fall under the Act, recorders must be “designed or marketed for the primary purpose of .. making a digital audio-copied recording for private use.”

CD recorder manufacturers have generally taken the position that their recorders are not designed or marketed primarily for the purpose of making digital audio copies and are professional model products. CD-R media, likewise, is primarily marketed and most commonly used for copying computer programs and databases.

The AHRA provides that the importer manufacturer, or distributor of any digital audio recording device or digital audio recording media must file quarterly statements and pay, with those filings, royalties on each recorder or piece of media distributed in the United States. The royalty is 2 percent of the manufacturer’s selling price for recorders and 3 percent of the manufacturer’s selling price for recordable media. The royalty minimum for recorders is one dollar and the maximum is eight dollars, although in 1998, interested parties (such as musicians and music publishers) may request an increase in the royalty maximum under certain conditions. There are no minimum or maximum royalties for recording media.

Two-thirds of the royalties go into the Sound Recording Fund and are distributed from that fund to the American Federation of Musicians (2-5/8 percent), the American Federation of Television and Radio Artists (1-3/8 percent); 40 percent of the remaining royalties go to featured recording artists and 60 percent are distributed to music publishers.

The remaining third of the royalties are allocated to the Musical Works Fund and are distributed evenly between music publishers and songwriters. The percentages of distribution within each group of beneficiaries is determined by the groups themselves.


The court’s finding in the Betamax case indicates a clear analogy in copying music to CD for private use. In CD audio duping, the fact that an entire CD is reproduced, from an original that the consumer bought with the understanding that he or she had an unlimited right to play it wherever he or she pleased as many times as he or she pleased and in whatever order he or she pleased, should not prevent the purchaser from claiming that it is a fair use to change the order in which the tracks are played for convenience’s sake or added listening pleasure. What you are doing is, in effect, “order shifting” instead of “time shifting,” which is permissible in the Betamax case. It is difficult to see much difference between the two uses.

So, if you are so inclined, go ahead and make those compilations or reordered copies of your existing CDs, LPs, and tapes. Although you may not have a “right to copy,” you do have immunity from any copyright infringement action by operation of Section 1008 of the Audio Home Recording Act, provided that the copying is performed with a device designed in compliance with that Act. But expect the Recording Industry Association of America to attempt in short order to curtail your rights by trying, through legislation or litigation, to force CD-R/RW drive makers and CD-R/RW software companies to prevent you from compiling your favorite songs from discs you own to CD-R. And expect to see them in for a battle when they try.

RELATED ARTICLE: Fair Use Hypotheticals: An Exercise in Frustration

Assuming that home copying is in fact a copyright violation, it is interesting to look at the fair use defense in some hypothetical cases. The analysis is difficult; a federal court described the fair use Doctrine as “so flexible as virtually to defy definition,” but it seems to come down in most cases on the side of home recording being a fair use. The following is the statement of the fair use doctrine within the Copyright Act of 1976:

Section 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered will include the following:

* the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

* the nature of the copyrighted work

* the amount and substantiality of the portion used in relation to the copyrighted work as a whole

* the effect of the use upon the potential market for or value of the copyrighted work.

“The fact that a work is unpublished,” the statement concludes, “shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”


Given the Fair Use Doctrine and the RIAA’s attempted assault on audio consumer liberties, a law school examination in a class on “CD-Audio Copyright Law” might include the following questions:

1. Fred Copyman is a music lover. He collects records, cassettes, and CDs. All of the records, tapes, and CDs in his collection have been purchased by him from music stores. Copyman has a favorite LP that is not available on CID. Each time he plays it, however, it physically degrades and he is afraid that it will eventually become unplayable. He makes a copy of the LP to CD. The CD is for his own private use. Is this a fair use?

This is a noncommercial use made partly for the convenience of the copier and partly for the preservation of the copyrighted music that is embodied in the material object, the LP. This perspective weighs in favor of a finding of fair use. The nature of the work is a musical recording. As a musical recording, it is generally given more protection than an informational piece such as a news story and that condition would weigh against a finding of fair use. The amount of the work copied is the complete contents, which also weighs against a fair use finding. But what is the effect of the use on the potential market for or the value of the copyrighted work? The potential market in this case is presumably none, since the LP is out of print and the material contained therein was never committed to CD or tape. Therefore, the use has no impact on the value or the potential market of the copied work.

Additionally, in this case, a court should consider the preservation motive, as at some point Copyman had paid for the LP and thus owns tangible personal property embodying copyrighted material. Copyman has a right to protect that tangible personal property that he purchased. Of course, the copyright owner it could also argue that when he bought the LP he was presumably aware that it would degrade with repeated playing and at some point he might have to purchase a new copy. If he could purchase a new copy on tape or CD, then this might not be a fair use of the work. However, since in this case Copyman cannot obtain the material anywhere else, his right to protect his personal property should supersede his knowledge that the LP would at some point have to be replaced. Additionally, assuming that the recording had some historical value, such as being one of only a few remaining copies of an album by Woody Guthrie, for instance, this fact should also be taken into account.

2. Fred Copyman makes a second copy of a CD that he owns to play on his car CD player. The CD is for his own private use. If he had not copied the CD, he would not have bought another copy from the record store to use in his car. He would have instead used the original and shuttled it between his car player and his home player.

The purpose of this use is convenience and its character is noncommercial. The nature of the copyrighted work is again a musical recording presumed to have more protection than straight reporting or less creative works. The whole of the work has been copied. What is the effect of this use on the potential market for or value of the work? Since Copyman would not have bought another copy for his car, there is no effect on the potential market or the value of the work.

3. Copyman makes a ‘party” disc, containing 10 separate copyrighted audio tracks that he has extracted from 10 different CDs that he owns. The CD is for his own private use.

Again, applying the fair use analysis, the purpose of the use is convenience and the use is noncommercial. Copyman could have obtained the same effect by inserting the 10 source CDs into an Audio CID changer and programming it to play the 10 tracks that he chose for his disc. The nature of the copyrighted work is that it is 10 different copyrighted musical works, presumed to be more protected than certain other copyrighted material. The amount and substantiality of the portion used in relation to the copyrighted work as a whole is a calculable number that consists of the total length of each disc in minutes and seconds divided by the length of the extracted song. And the effect of the use on the potential market for the value of the work is none. This disc is not available from any source.

But let’s change the scenario a little bit, Party discs are available for purchase. Companies like Custom Revolutions of Stamford, Connecticut specialize in creating custom CDs for their customers. Assuming that they had all the songs available in their licensed library, they could have made the disc for Copyman and would have paid royalties back to the record companies for each song they recorded onto the disc. Does the fact that Copyman could have purchased the disc that he made make a difference? It seems to, since there is indeed an effect on the potential market for the music contained on the disc and the value of the work. By making the disc himself, Copyman does not purchase the custom disc and the record companies do not get royalties for these 10 songs. Since Custom Revolutions has already licensed all of its offered content from the record companies, the discs that they produce are free of the copyright questions that may be raised in the home recording arena.

RELATED ARTICLE: For the Record: The RIAA Position on Home Copying

The Recording Industry Association of America (RIAA) represents the interests of record companies, and indirectly, the interests of the artists, backup musicians and vocalists, and songwriters whose music they produce. The RIAA cannot speak for all record copyright owners, let alone the songwriters and music publishers who own the copyright in the musical works embodied in every recording. Each copyright holder individually has the right to interpret–and enforce–his or her own copyright rights as he or she deems appropriate. So what follows is merely the RIAA’s view on home taping generally.

Any unauthorized reproduction of a sound recording is technically a copyright infringement. It does not matter whether the reproduction is from a CD to a cassette tape, from a CD to a hard drive, or from a CD to a CD-Recordable disc. In reality, however, no record company has ever sued a consumer for copying music for noncommercial purposes. Moreover, since 1992, with the passage of the Audio Home Recording Act, consumers have been allowed immunity from lawsuits for copyright infringement for all analog and some digital recording. Importantly, however, that immunity does not extend to recording by means of general-purpose digital recording devices, including almost all of the CD-R and CD-RW devices on the market today.

The problem record companies have with home copying is its aggregate impact. One individual making one copy is not going to cause significant harm. But millions of individuals doing the same thing can, and do, cause extraordinary harm. And with the advent of the Internet, a single individual can do incalculable damage all by himself.

It’s important to understand that record companies make their money virtually exclusively from the sale of records. If records aren’t sold, but are copied instead, the business of making music suffers. Artists and songwriters don’t collect royalties, and at some point, can no longer make a living in the music business; record companies don’t recoup their investment, and at some point, are no longer able to invest in new artists and new music. In the end, the losers will be those who love music–because the breadth and depth of the musical talent supported by the U.S. music industry cannot exist without financial support. The winners are the companies that make copying machines and blank media; they profit from selling their devices to consumers who want music without having to pay for it.

What record companies want and need is a technical means of preventing unauthorized transmissions and preventing or limiting copying. It happens that such a technical solution is already available with respect to CD copying. Every CD has a copy protection bit encoded in it. If the software used to copy CDs on CD-R machines would simply read for that bit and disable the record function when the bit is found, the aggregate damage caused by unlimited CD copying could be avoided.

RELATED ARTICLE: Companies Mentioned in This Article

Adaptec, Inc. 691 Milpitas Boulevard, Milpitas, CA 95035; 408/945-8600; Fax 408/262-2533; http://www.; CIRCLE NUMBER 401

CeQuadrat USA, Inc. 1804 Embarcadero Road, Suite 101, Palo Alto, CA 94303; 800/330-6734, 650/8433-780; Fax 650/843-3799;; CIRCLE NUMBER 403

Custom Revolutions 1 Atlantic Street, Stamford, CT 06901; 203/323-8900;; CIRCLE NUMBER 405

Elektroson, Inc. 2105 South Bascom Avenue, Suite 160, Campbell, CA 95008; 800/606-6116, 408/371-4800; Fax 408/371-4895;; CIRCLE NUMBER 408

Home Recording Rights Coalition 1145 19th Street, P.O. Box 33576, Washington, DC 20033; 800/282-8273;; CIRCLE NUMBER 411

Philips Key Modules 2099 Gateway Place, Suite 100, San Jose, CA 95110; 408/453-7373; 408-453-6444;; CIRCLE NUMBER 421

Recording Industry Association of America; CIRCLE NUMBER 423

Robert A. Starrett is a contributing editor for EMedia Professional, co-columnist for THE CD-R Writer, and an independent consultant based in Denver, Colorado. He is the co-author of CD-ROM Professional’s CD-Recordable Handbook.

Comments? Email us at, or check the masthead for other ways to contact us.

COPYRIGHT 1998 Online, Inc.

COPYRIGHT 2000 Gale Group