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Rick Truell Faisal Humayun: 'Audials and other recording software would most likely fall into the "time shifting" fair use exception stems from a well-known Supreme Court case called Sony Corporation of America, Inc. v. Universal City Studios, Inc.'

Glad to see someone else recalls "The Betamax Case", as it was commonly referred to. Unfortunately, it doesn't apply here...it only applies to recording TV shows, not music on the radio. Back before the days of VTR's, if a person missed the scheduled airing of a show, that was it...there way no other way to see it, as there rarely were repeat airings of every episode and TV shows were not yet available on videotape for purchase. Then Sony (the inventors of Betamax) and JVC (the inventors of VHS) created/licensed VTR's that could record anything that aired on TV. This scared the movie studios very much...the movie-on-videotape industry was just getting started, and they were afraid that people would build libraries of movies they'd recorded when they aired on TV for free and thus not go out and purchase them. So, they tried to get the law to prohibit the sale of VTR's. This annoyed the TV-watching consumer...they *finally* had a way that would allow them to watch TV shows even though they couldn't be home at airing time and some lame-brained studio exec's were trying to take that away from them. They complained...somewhat vocally. When the dust finally settled, the "time shifting" exception was the result. But it was based on the (usually unstated) conditions that the following would happen:

1. The owner would set the VTR to record a show when they couldn't be at home to watch it.

2. The owner would watch the recorded show at a time more convenient to them.

3. The owner would then immediately erase the tape. Reusing the tape to record another show was considered the same as erasing it.

This satisfied the movie studios because even if someone recorded a movie when it aired on TV for free, they could only watch it once and then "had" to erase it...if they wanted to watch the movie more than once, they "had" to go buy it. And it satisfied the home consumer because they could now watch their TV shows, even if they couldn't be home when it aired, since they couldn't go out and buy them.


Music, on the other hand, is and always has been an entirely different thing. Firstly, if you missed a song when it aired on the radio, all you had to do is wait an hour or so and it would air again (and depending on the type of station, and again and again and again and ....). Secondly, recordings of songs that played on the radio were (usually within a week or so of, and sometimes even simultaneously as, the first airing on the radio) available for purchase on vinyl (78's/45's/LP's) and had been for decades. Thus, repeated airings and the ability to buy music means that the "time shifting" exception doesn't apply to music. As a result, it is (and always has been) illegal to have a copy of a song/album without having purchased it in some manner...on vinyl, on tape, on CD/DVD or online from iTunes or some other online music store selling legitimate copies of songs. That is why Napster nearly got sued out of existance...they were providing people with songs without having to pay for them, which is illegal. In order to keep from spending the rest of their lives in prison, they caved and started charging for the MP3's they provided...and then signed deals with all the recording companies to get high-quality encodings from their *entire* libraries. This is also why most radio announcers/DJ's talk over the intro to songs, right up to (and, annoyingly, sometimes past) the point at which the vocals start...to keep people from recording the songs from the radio.

"But Rick," (I hear you saying), "programs like Audials One 9 and Nexus Radio allow you to record the radio stream". True enough. However, if you check, you'll see that the *intent* of these programs is to allow you to *listen* to your favourite (or soon-to-be-favourite) radio station when you aren't near a radio but *are* near an Internet connection...say, at an Internet Cafe or a McDonald's. The ability to record was probably added in simply because someone requested it...and because it's easy enough to do so. Don't forget that the developers of such programs aren't responsible for what the end user does with it...any more than Smith & Wesson is responsible when someone uses one of their guns to murder someone. If you use Nexus Radio to illegally record music from a radio station and the RIAA finds out about it and tracks you down, *you* are the one getting the fine and the jail time, not the creators of Nexus Radio (although they'll probably get a cease-and-desist order and be forced to remove the recording capability once you tell the RIAA you were using their program to do the recording).


As an aside, it should be noted that even the "time shifting" fair use exception from the Betamax case is slowly being eroded, thanks mostly to the advent of digital recording devices (DVR's/PVR's that record to either DVD media or to hard drive) that have pretty much replaced the VTR over the last decade. It seems that the content creator, the broadcaster or even the cable/satellite company is able to set a do-not-record "flag" in the signal that causes the recorder to stop recording, usually even before the desired show has started airing (I have always set my recorders to start 2 minutes before the scheduled start time of a show, and several times one of them has ended up with recordings lasting 30 seconds or less. At first I thought it was a problem with the recorder, but then I tried to do a last-moment manual recording of a show one time and got a message on the screen saying that recording was prohibited. A quick search on the Internet filled me in on what was happening and showed that it was becoming more and more common). Fortunately, this is mostly happening with premium content, such as movies on HBO and similar channels, rather than broadcast TV (ABC, NBC, etc.) but, with the recent switch to digital broadcasting in North America over the last few years, the fact that most networks are associated with a movie studio and the big (idiotic) pushes the MPAA has been doing recently to try to stop piracy, I wouldn't be surprised to see broadcast TV using this do-not-record "flag" in the (not-so-distant) future.

Additionally, the *need* for time-shifting is increasingly vanishing as well. Most, if not all, of the broadcast networks offer next-day viewing of shows on their web sites. A lot of cable-only channels do the same via their web sites. Here in Canada, my cable provider (Shaw Cablesystems) offers on-demand, next-day showings of the prime-time lineups of the 3 Canadian networks (for CTV and Global, that pretty much consists of most of the shows in the prime-time lineups of the US broadcast networks; CBC pretty much creates all of its own shows) and some of the premium movie channels offer on-demand viewing of their content via cable as well. Presumably the same (or similar) is true of the other cable providers and the satellite systems in Canada and the cable/satellite systems in the US. As this tendency increases, the need to time-shift will slowly disappear. And, of course, there's also DVD's (which are frequently available within weeks of the season finale of a show), Netflix, Hulu (but only if you live in the US [boooo!]) and similar services.


Sadly, I foresee the day, in the not-so-distant future, in which not only is it illegal to have a copy of video content without having purchased it in some manner, but it will be *impossible* to make such copies...and that includes for time-shifting purposes. The MPAA certainly wants it to be that way (right now, today [and probably retroactive to the day of the first TV broadcast!]; they don't care about time-shifting...hence the need for the Betamax case in the 80's), and they've got the money (and lack of intelligence) to make it happen. The do-not-record "flag" for OTA/cable/satellite broadcasts is probably the way they'll go about it, once they find out how well it works (far better than Macrovision ever did for stopping piracy!!).
        Jun 19 2012 at 2:22am
Rick Truell It occurs to me that I didn't mention it in the post, but something to keep in mind when reading it: I am *NOT* a lawyer, so my comments/statements are *NOT* a legal opinion. However, I've been around a while, I've had some minor contact with the music industry (from a radio station's point of view), I've done a lot of reading/research on the topics of the legality of recording TV shows (mostly because of the Betamax case that Faisal mentioned in his post) and music from the radio, and I have a *lot* of common sense.
        Jun 19 2012 at 2:54am
Rick Truell With someone else asking about the legality of recording Internet radio stations, I came back and re-read my post before posting a reference to it. A good thing too, as I discovered I was a little too general in one of my statements. I said:

"As a result, it is (and always has been) illegal to have a copy of a song/album without having purchased it in some manner"

These days, there is, of course, one exception to that general rule...artists that offer their works online for free. They do this for a number of reasons, two of which pop immediately to mind: as a "thank you" to their fans for their support over the years, or as a 'revolt' against the practices of the big music labels. Whatever the reasons, since the music is offered online to be downloaded for free, it is, of course, perfectly legal to have a copy of the song/album without having purchased it.

My statement applies only to music made available via commercial means - CD's, Napster, iTunes, etc. - and I'm sorry I didn't make that distinction the first time. And since most radio stations play commercially-available music, my other statement stands: it's illegal to record music from radio stations...Internet or otherwise.
        Aug 8 2012 at 9:25pm
Exolon Miner Sorry, but I have to say this: You are still too general.
Copyright laws differ from country to country. They are not all the same all over the world. Where I live its 100% legal to record radio or TV stations for personal use and here at this place it's legal to make a copy of an unprotected original Music-CD for a friends personal use.
        Aug 8 2012 at 11:37pm
DrTeeth TBH, it do not care at all about the legality of the matter here. It is not as if the state has surveillance equipment in my home. If I want to record it and keep it I will. Format shifting is illegal in the UK, but it does not stop ANYBODY. It a law is silly, people will ignore it.
        Aug 12 2012 at 9:12am
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