Here's an article from the October 23, 2005 New Jersey Star-Ledger. I confess to being baffled by it. It seems to misunderstand the issue entirely. Perhaps readers can point me in the correct direction. Here's the article in toto:
"Contrary to the opinions of a number of readers, I am not a law breaker.
At least, I don't think I am. In a recent column about my transition to an all-digital music collection, I mentioned a plan to sell my CDs after creating digital copies on my personal computer. Quite a few readers wrote to tell me this would be illegal. If you sell the CD or give it away, they informed me, you must delete the digital versions, as the rights to keep a copy of the song reside with the owner of the CD. Was this true? What if I have a 10-year-old CD, with a couple of songs I enjoy? Does that mean I am breaking the law if I keep those songs on my iPod after selling the CD for $1 at a garage sale? I decided to investigate. As is the case with many legal issues, a clear answer wasn't readily available. But at least it is now clear to me how hazy an issue it is. "The law is terribly unclear on this question," says Fred Von Lohmann, a staff attorney for the Electronic Frontier Foundation, a nonprofit advocacy group for consumers' digital rights. "It's very hard to give any kind of clear answer."
Courts might view the situation differently, depending on an individual's behavior, he says. Are you a "buy, rip, and return kind of guy," essentially making digital copies from CDs and then returning them? Or are you, like me, getting rid of physical CDs that you no longer use, simply because you have the music on your computer and you now buy songs from the iTunes Music Store? "The law gives precious little clarity to the average person," Von Lohmann says.
An academic specialist in cyberspace aspects of intellectual property echoed Von Lohmann's views. Whether you can keep digital music files on your PC or iPod after you sell your CDs is legally "untested," says R. Anthony Reese, a law professor at the University of Texas at Austin. Reese says he doesn't know of any court cases dealing with this scenario.
Given existing copyright law, he says, it is "not easy to predict how a test case would come out."
Yet the issue isn't a purely academic one. More and more people are facing this dilemma, as they have no use for the CDs taking up space in the bulky, archaic racks in their living rooms. They use their iPods to listen to music on their home stereos, cars, and elsewhere.
Do they really need to store their CDs in their attics in order to avoid breaking the law?
Yes, according to music industry representatives, though they were unable to provide any real legal backing for that view.
A spokesperson for the Recording Industry Association of America, the group known for filing lawsuits to stop digital-music swapping, pointed me to a document from the Copyright Office to support the idea that you aren't allowed to keep a digital music file once you sell the physical CD. But the document -- see for yourself, [DMCA Report Executive summary, my link]-- sheds little, if any, light on the issue. I e-mailed a top industry executive, whose assistant contacted me to say my rights to digital music would end when I sell the physical CD. But the executive was apparently wary of expressing that view in public, as his assistant suggested I refer to him as "an unnamed industry source." A spokesperson for Warner Music Group referred me back to the RIAA.
But the industry's message, that you must be wary about what you do with music you store on your PC, is clearly making it out there, judging from the e-mails from readers who were convinced that what I was doing was illegal. Don't expect to hear about a resolution to this issue anytime soon. The music industry is unlikely to press it in court, what with its other concerns. But if it is discussed, you will be sure to hear about it at LawMeme (research.yale.edu/lawmeme/), a Weblog covering the intersection of law and technology.
TECHscan Political news junkies have yet another source: C-SPAN's CapitalNews (www.capitalnews.org), a news operation that's designed for people who want to keep tabs, 24/7, on what's happening on Capitol Hill, the White House and the national political scene.
Allan Hoffman may be reached at email@example.com or in care of The Star-Ledger,
1 Star-Ledger Plaza, Newark, N.J. 07102. "
Here's my reaction to the story: If one links on to the Executive Summary to the Copyright Office's DMCA report provided above, at pages 6-8 , you will find discussion of a proposal to amend the first sale doctrine in Section 109 to provide that where someone's lawfully made copy for 109 purposes was in digital form, that copy could be transmitted to a friend etc., so long as the "original" digital copy is deleted. The Office agreed that the current Section 109 is technologically neutral; that is it applies to lawfully made digital copies, but it declined to endorse the proposal both because of perceived differences in the way hard copy and digital copies degrade and because of doubts about verification of deletion.
But nothing in the report, or the law I am familiar with, says that if you own a lawfully made hard copy, like a CD, and you then make, for personal use, a digital copy, you can't sell the CD. Of course you can. You can sell your lawfully made CD even if the making of your digital copying is illegal: absent some contract provision, the two issues are totally separate.