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) taken directly from their website:

Q. If I own my own discs, can I load them onto a hard drive to play them in a show, etc.?

A. 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 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.

Tim Smith is the owner of By Request DJ & Karaoke Company and has worked towards getting US disc jockeys the right to use compressed digital audio since it became legal in Canada.