Copying Music to CD: The Right, the Wrong, and the Law - by Robert A. Starrett
Page 3 of 8
COPYRIGHTS IN MUSIC AND HOW THEY'RE CONSTITUTED
Most music discs contain copyrighted material. The basis of copyright protection in the United States is found in the U.S. Constitution, Article I, 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. [an error occurred while processing this directive] 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.
Originally Posted by AVB
I think you are missing their point. You are not allowed to give away your copy of a licensed product, let's say CD in this case, without also giving away to the same person the original licensed product too. As soon as you give your copy to someone else but retain the original licensed product you have violated the license agreement and DMCA. That copy is now no longer under your "personal use" and thus is not legal. So you may not give away your copy to charity and retain the original but you may give both to charity.
As I mentioned previously, 17 USC 1008 is the appropriate statute. What the RIAA wants and what the law actually is may not be the same thing.