From: john@johniac.austin.ibm.com (John Iacoletti)
Subject: Re: Morality vs. Sanctity
Date: Fri, 14 Aug 92 16:45:48 GMT
Reply-To: johniac@hwperform.austin.ibm.com (John Iacoletti)
Organization: IBM Advanced Workstation Division, Austin, TX

In article <1992Aug10.232936.9032@math.ucla.edu>, dmac@julia.math.ucla.edu (saki) writes:
|>                              Under United States law, it's illegal
|> to sell, trade, play, duplicate, and/or traffic in bootleg or counterfeit
|> recordings.

Let me add that this applies to any copyrighted material, and of
course doing these things is not illegal if you have permission from
the copyright holder.  The word "play" should really be "broadcast". 
This is an important distinction which I will discuss later. 

|> Ownership per se is not prohibited, but ownership is *presumed*
|> by authorities to indicate an intent to sell, trade, play...etc.,
|> unless the owner can prove (if asked to do so) that he/she has
|> no intention of ever using the material in question; to wit, the
|> owner of a bootleg record would have to show that it was still in
|> its sealed wrapper, that there was no playback/recording equipment
|> on the premises...all of which is rather silly, of course.

Yes it is silly.  "Authorities" can presume whatever they like, but
even though defendant's rights are slowly being whittled away in the
United States, the burden is still on the government to prove that you
actually duplicated, distributed, or broadcast the material, not on
you to prove you didn't.

Now, let's discuss what it means to broadcast copyrighted work. 
Broadcast is generally considered to mean a "public" broadcast.  This
can be over the air (as in a radio broadcast), or to an audience.  It
could be more easily proven that your broadcast was accessible to the
public if you advertised the event in the newspaper or charged
admission, or played it on a radio station, but of course these aren't 
necessary for a broadcast to be considered public.  I claim that
playing a copyrighted work to yourself, or even to friends and family,
is not a public event, and therefore does not constitute a violation
of intellectual property law.  One case to look at closely is the
"Betamax" case of the late seventies/early eighties which established
that it's not a violation of copyright law to record a broadcast TV
program off the air for later private viewing.  Not only was the
"later private viewing" not considered a "broadcast", but the initial 
off-the-air recording was also considered to be "fair use duplication".

|> I have to admit that, after years of hearing from various parties
|> that "ownership" of bootlegs per se was okay---including private
|> trading and copying---I was confused as to whether this was really
|> true. That's what led me to look up these sources and consult with
|> experts.

Selling, trading, or otherwise distributing or offering to distribute 
is verboten, unquestionably.  I'm going to be bold here and suggest 
that your experts are doing what lawyers do best and being overly 
conservative in their interpretation of "broadcast".  Ownership is 
clearly legal, owning a single copy of something for private use
cannot be considered intent to distribute, and merely listening 
to a recording is not enough to constitute a broadcast.

-- 
John Iacoletti    IBM AWD Austin    Internet: johniac@hwperform.austin.ibm.com
        My opinions do not reflect the views of the IBM Corporation
"Now I laugh and make a fortune off the same ones that I tortured, and the
  world screams, 'Kiss me, son of God'" -- TMBG