Burning CDs and Copyright Law

CD Reflections by spcbrass from Flicker (Creative Commons License)

CD Reflections by spcbrass from Flicker (Creative Commons License)

One of my favorite minimalists shared a post by Lindsay Schauer about the eight things you can live without on Twitter last week, and it kicked off a legal discussion and he asked me to comment. One of the things Lindsay said to get rid of is your CD collection – burn them to your hard drive and get rid of the physical CDs themselves. That makes a lot of sense. A single CD doesn’t take up much space but a collection of jewel cases does.

I put my CDs in a CD binder and chucked the cases years ago, but can you legally copy a CD you own and keep that instead of the disk?  Probably.

The copyright holder (likely the record label or the artist) controls when/where/how their work is copied, distributed, and performed. When you buy a CD, you only purchase the tangible object – not the intellectual property rights. Just like when you want to get rid of an old book you can give it away, throw it away, or sell it to a second hand store, the same is true for CDs. However, you can’t make a photocopy of the book so you can keep the original for yourself and give a copy to a friend. The same is true for CDs. (Yes, all those copies of CDs you burned from or for your friends are probably illegal.)

CDs by borkur.net from Flickr (Creative Commons License)

CDs by borkur.net from Flickr (Creative Commons License)

If you legally purchased a CD, you can make a copy of it for “archival” purposes. This prevents you from having to buy a new one in the event the CD gets lost, damaged, broken, or used as a Frisbee, coaster, or for an art project. The same rule applies for making a copy of computer software that you’ve legally purchased.

So can you take Lindsay’s advice and copy all your CDs to your hard drive and chuck the originals? Yes, if you legally purchased the albums. You can only make one copy for yourself. You can’t make copies for your friends.

The purpose of the copyright law is to give artists rights in their work and allow them to profit from selling it. An archival copy is supposed to be a backup for the original, so some copyright holders may frown on people who make an archival copy of a CD and sell the original. (You’re starting to look like the guy who sells a book to a friend but keeps a photocopy of it for himself.) There’s an argument that you’re committing copyright infringement; however, the amount you’re making isn’t really cutting into their profits, and the artist might be happy that more people are being exposed to their music. If someone is concerned about their rights and maximizing profits, they might be less upset if you throw the CD away or repurpose it into a coaster so anyone else who wants the album has to buy it.

The good news in copyright infringement cases is the only person who can come after you for copyright infringement is the copyright holder. If they don’t know what you’re doing or don’t care, they will never come after you.

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  1. Robert Wall says:

    So let me pose two questions.

    Joe purchases an album on CD, brand new, from WalMart. Joe takes that CD, puts it into his computer, rips it into iTunes, and puts the CD in the “donate” bin.

    Joe has purchased a license for the music (by buying the CD), and has exercised his rights to make an archival copy (by ripping it into iTunes).

    If Joe’s friend sees that CD in the donation bin and Joe gives it to him instead, now the friend has the CD.

    Is the friend allowed to put that CD into his computer, rip it into iTunes, and toss it into his own donation bin? Or does that right stop with the original purchaser?

    If this is legal, it would seem that this is a way to basically manufacture licenses for music.

    And one more question. Let’s say somebody *does* get cranky with you about your ripped music collection. Producing a stack of original CDs (even if they’re all beat up) is likely an affirmative defense to copyright infringement.

    What do you do if you’ve disposed of all the originals?

    • That’s a great question and one a fellow legal eagle raised too. If you don’t have the original CD anymore, how are you going to prove that you legally bought it before you ripped the album? It could be hard to prove unless you have photos of your CD collection from when you still had it. Thankfully most artists and record labels aren’t going to go after you for this…at least they haven’t so far.

      In copyright, the artist has control over the first sale but they can’t tell you what to do with their CD, book, painting, whatever once you’ve bought it. You can throw it way, give it away, paint it purple, destroy it, etc. This issues gets unclear because we have consumers making copies without destroying or keeping the original which opens the door for a copyright infringement claim.

  2. Hi Ruth!
    I have been trying to “figureout” if it’s illegal to burn a CD with videos from youtube that belong to a TM company…a friend of mine wants to “give away” CDs with downloaded videos from youtube as part of “party favours” for her daughter’s birthday… I’ve told her that, as far as I knew, videos that are uploaded to youtube can be downloaded and burned as far as one doesn’t sell them… I hope not te be way too informal 🙂
    Greetings from Argentina.

    • Ruth Carter says:

      Greetings! The answer to your question would depend on whether the videos were uploaded with a Creative Commons license which could allow this type of use. Depending on the source and the laws that apply to the intellectual property holder, it could be copyright infringement and trademark infringement, if they get caught. Just because the person who made copies isn’t selling them, it doesn’t necessarily absolve them from any wrongdoing.

  3. Andrew Huang says:

    Hi Ruth,
    My name is Andrew, and I have a question about the burning of a CD in physical format, which I have purchased from the artist. The band is called The Luck, and they are a band from London. I am wondering if it is legal to burn a copy of the CD for my cousin. I am unsure of whether I should burn the CD because I have heard that it is only legal to use the CD for personal use, such as within my own home, or for archival purposes. If burning the CD for my cousin is illegal, then what alternative solutions should I seek? If my cousin really wants the CD, then maybe he can buy one for himself from the artist. Thank you and I would appreciate any response.

    • Ruth Carter says:

      The U.S. Copyright Act says you can make one copy for archival purposes. If someone else wants a copy of a CD, they should buy one. This helps ensure that the band gets paid what they’re owed for putting out an album for people to enjoy.

      • Andrew Huang says:

        Thank you for your insightful response, Ruth. I appreciate it. I will make sure to tell my cousin to purchase the CD.

  4. Another scenerio: Used CD store
    If I rip my CD and then give to a used CD store either ouright or for store credit, isn’s this the same as giving it to a friend? Basaically the used CD store is like a fancy donataion bin which charges for the bricks-n-mortar and for knowledgable staff to guide the buyers who pay for this service. By providing used CDs these buyers are avoiding paying the artist for their music. I still “own” the music on my iTunes but now another person ie: “friend” also has the music I bought originally. How are used CD stores doing this without raised eyebrows from copyrighters/ artists? Don’t ask- Don’t tell?

    • Ruth Carter says:

      The artist has the right to profit from the first sale of their work – so the initial sale of their CD, book, painting, etc. What the purchaser does with it is their prerogative. The buyer can sell it, donate it, destroy it, etc., without owing royalties to the artist or needing their permission.

  5. if someone downloads songs from youtube and creates a playlist then burns them into a cd-r, planning to sell them, is it a crime/will that person get sued?

    • Ruth Carter says:

      Oooohhh. I’d check what license comes with the videos. If all rights are reserved or if the user doesn’t allow for commercial use (assuming the person who posts the video owns the rights to the music), they may object to you selling their music without a license or consent, which could result in copyright claims from each copyright holder.

      As always, I can’t give legal advice through this website. If you want a proper legal analysis of the situation, schedule a consultation with a copyright lawyer.

  6. What if several friends pool their funds to purchase a CD and own it collectively as the Group? The Group archives the CD and makes the archive copy accessible only to Group members on a network server. How does copyright law deal with collective ownership like this?

    • Ruth Carter says:

      My friends did something similar to this in college but with DVDs and they passed them back and forth among themselves. This sounds like something that could be done so long as the backup copies aren’t being used in lieu of buying more than 1 copy of an album. The backup copies exist in case someone scratches or breaks the original disc and it needs to be replaced.

  7. Hello Ruth,

    I work at a community hospital as a chaplain. We want to offer relaxation music (which we purchase) to patients recovering from surgery and illnesses. We plan to load the music onto several few mp3 players that we the patient can use while in hospital. We also would like to put the music on the closed circuit TV channel in the patient’s rooms. How do we best go about securing rights to do this? Do we need to buy a separate CD or digital download for each mp3 player? How do we get rights to transmit the music over the CCTV? Thank in advance!

    • Ruth Carter says:

      What a great idea!

      I suspect the hospital has a legal department so I’d start by asking them to field the question. In regards to the CCTV, I’d look into license options through ASCAP (http://www.ascap.com/licensing). For the iPods, I wonder because these would be available for patients, which would make it an amenity of the hospital, whether purchasing each song for each iPod would be sufficient, if a license through ASCAP or a similar service is required, and if you have the option to choose either one, which would be more cost effective. Good luck with your ideas!

  8. Let’s say you burn CDs from a friend’s collection for your own use in your car’s player. You get pulled over for a traffic offense. The cop sees the CDs and determines their origin. Can you actually be arrested?

    • Ruth Carter says:

      I’ve never heard of a cop caring about what CDs you have in your car for personal use. I suspect, as long as it doesn’t look like you’re trying to sell counterfeit albums, the officer won’t even ask about your music. How would he/she know that you didn’t just burn a copy from your own collection?

  9. Hi Ruth,
    It’s clear enough I cannot copy a CD then give it to my friend; he should buy his own so the artist “gets paid”. I note however you say once you’ve bought it you can throw it way, give it away, etc. Yet if I donate to a Goodwill or a charitable thrift store I know they will very likely sell my CD, and that too seems to be denying the artist his due, much the same as giving a CD to my friend. Or is it OK by some rationale? It just seems wrong to trash CDs and not have a charitable activity benefit from them.

    • Ruth Carter says:

      Probably the best way to comply with the law is, When you get rid of a CD, you should get rid or your archive copy as well. The artist gets paid the first time their work is sold. On the secondary market, they don’t get another bite of the apple. What they don’t want is illegal copies being created so that secondary market sales are a replacement for sales from which they would make money. Legally speaking, there’s nothing wrong, once you no longer use a CD, book, painting, etc., to give it a new home by giving it to a charitable organization – as long as you don’t keep a copy for yourself.

  10. I have a project in mind for my literature class which involves providing a CD of different songs for their class presentation. If the student owns the CD from which the songs are taken and uses them for this purpose only, is that breaking the copyright law? The copied CD would be returned to the student.

    • Ruth Carter says:

      It sounds like you’re trying to be creative with your assignments while being respectful of the copyright laws. I suggest you talk with your supervisor about your school’s rules regarding acceptable use of others’ content in the classroom.

  11. can you download music on a free app that you can download music and put them on a cd

    • Ruth Carter says:

      I would read the terms of service for that app and apply common sense. While the U.S. Copyright Act allows a person to make an archival copy, don’t use apps to download music that you know the artist otherwise sells unless the artist made an announcement that they were giving away their music for free on the app. Otherwise, I’d assume it was an app for stealing and illegally sharing music.

  12. Hi Ruth, if you are offering a service where by you are taking someones digital copy of music and collating it and giving it back to them as a “mix tape” on a vinyl, is there any responsibility on you as an orgnaization for copyright purposes even though you aren’t ever keeping a copy of the music? Thanks! Emily

    • Ruth Carter says:

      I can’t give advice to non-clients, but here are my off-the-cuff thoughts. This sounds like a situation where you would want a contract with clients that states that they are not asking you to do anything illegal and they will indemnify you and reimburse all expenses if such accusations occur. (This is what the company that makes my custom t-shirts does.) The U.S. Copyright Act allows users to make an archival copy of works and the license for other music services include permission to make a certain number of copies; however, you may want to consult a lawyer to help identify and confront clients if you get an order to do something that doesn’t pass the “smell test.”

  13. Hi Ruth, I have a question that is somewhat related to this topic. I have some old VHS videos (they are legitimate, not bootlegs) of old music videos from the 1980s. These music videos are EXTREMELY hard to find and long out of print. Would it be legal for me to make a “backup” or “archival” copy of each of these VHS tapes onto DVDs? I ask this because I’ve seen mixed answers online about this.

    • Ruth Carter says:

      I can’t speak to a specific situation to someone who’s not my client. The Copyright Act allows for an archival copy. It doesn’t state any limits about what medium they have to use to make this copy.

  14. What about making mixed CDs? I’ve seen you can make up to 7 copies, but is it legal to distribute these? I want to make a playlist from songs I have purchased and burn them to CDs to give away. I want to make sure it’s okay before I do so.

    • Ruth Carter says:

      You would have to read the “fine print” that comes with your songs to see what permissions are there. The other issue is the only people who can come after you for non-criminal copyright infringement is the copyright holders and/or licensees. If they don’t know or don’t care what you’re doing, you won’t face legal repercussions.

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