Copyfraud: Copyright Claims On CDs Say It's Infringement To Loan Your CD To A Friend
from the copyfraud-and-sons dept
We've talked a lot about the concept of "copyfraud," the increasingly common activity of copyright holders claiming more rights than copyright allows. It happens all the time, but sometimes it's really egregious. Wired is reporting on how the super popular band Mumford & Sons CD, Babel includes a copyright warning label that says it's infringement to lend the CD to anyone:“The copyright in this sound recording and artwork is owned by Mumford & Sons. Warning: all rights reserved. Unauthorized copying, reproduction, hiring, lending, public performance and broadcasting prohibited.”You can see a scan of the back of the CD here, which includes the warning on the left:
However, the article raises a larger point concerning "first sale rights" and the Kirtsaeng case that the Supreme Court will be deciding one of these days. If the CD were made outside of the US, it's possible that Glassnote/Mumford & Sons could start legitimately banning lending, since first sale rights will no longer apply. Wired quotes copyright lawyer Andrew Bridges (you might recognize his name), who first called everyone's attention to this bizarre choice:
“If this disc was made in Mexico, then it may be that I don’t have the right to lend it to anybody under the plaintiff’s view in the Kirtsaeng case,” Bridges said. “That actually highlights the importance of the Supreme Court’s pending case.”Of course, while the Wired article suggests this is a new thing, Sneeje helpfully points out that it's not that uncommon. And, if you look around, you can find the same terms on other albums as well, including by Roger Waters and Kanye West -- so it's not fair to blame Mumford & Sons specifically for this.
Spin Magazine claims to debunk the Wired article, also by pointing out that this phrase has been widely used for the past 20 years, and arguing that it's accurate in Europe, due to its directive on "rental and lending rights." Though, Spin's "debunking" deserves a bit of a debunking itself, since the "rental and lending rights" are specific to things like libraries. The specifics of the directive are that it applies to lending "made through establishments that are accessible to the public." The problem of course, with the simple terms used on the CDs, is that they make no such distinction. And though no one will enforce this against lending a CD to a friend, it remains a case of copyfraud, in which the public is being told that they cannot lend the CD due to copyright law, even if that's not accurate at all.
Whether the use of the term is new or not really doesn't much matter in the long run. Spin is right that it's not Mumford & Sons specifically that's the problem here (and it's not clear which CDs get this and which don't), but the inclusion of a claimed prohibition on lending still is a form of copyfraud and an attempted expansion of claimed rights.
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Filed Under: copyright, lending, mumford & sons, music
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So I'm not sure we should blame Mumford and Sons for ignorance that has been prevalent across the industry.
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Interesting. The original article notes that people were unable to find it, and I just looked through a stack of CDs and none of them have it either. So it doesn't seem that common, but apparently does happen...
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Um... how about just doing some of your own research before you continue stuffing your foot in your mouth?
The "Rental and Lending Right" is nothing new in Europe. It's part of a directive that was highly publicized around twenty years ago. Countries to this day are still adopting it.
The Rental and Lending Right
"Lending" in the words of the directive means:
Less than two minutes on Google would have cleared up your ignorance.
But, then again, those words might be mis-interpreted by people (who, for some reason read the fine print while not being versed in legalities)! The Horror! It must be stopped. This is the definition of your favorite tactic: FUD!
It's like you're not even trying anymore.
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Wait a second, I'm confused? You're claiming Mike is a copyright maximalist? You know, like the ones claiming that without copyright/SOPA/DRM/DCMA/extension/harmonization/N-strikes/... (or instead that with VCR/P2P/proxies/encryption/...) the fundamental forces binding the universe/economy together would suddenly cease in an apocalyptic finale?
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As I discussed in the article. Not sure your point.
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Which has what bearing on US law exactly?
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Copyfraud isn't a legal term of art, but I take it to mean over-claiming one's copyright rights. Still, I'm not sure I understand why you think the word "lending" is a problem if the other words in the list (copying, reproduction, public performance and broadcasting) are not. Some lending clearly would be infringing, such as if I lent you the disc with the intent for you to copy it and post in the internet for all to download. Some lending is infringing just like some copying, reproducing, public performing, or broadcasting is infringing. But some is not, such as if I'm copying and it's fair use. Seems clear to me that everything on that list can be either infringing or noninfringing, depending on the facts. So I think it's weird to point to just "lending" and claim copyfraud, whatever that even means. It's just like putting a copyright notice in the beginning of a book even if that book contains a mix of public domain and copyrighted materials. That's not copyfraud even though some of the contents are not copyrighted.
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Than why not to indicate that ripping the cellophane wrapping is also prohibited: indeed some may rip the wrapper with the intent to take off the disk and lend it (without case) to a guy who will copy it, or, worse, who would sharpen the disk and slid someone's throat?
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Mindless Muddle
COPYING is the infringing activity.
The fact that the media was lent in the process is entirely irrelevant. You don't get to engage in prior restraint just because some Netflix user or library patron MIGHT violate your statutory rights.
No. "Some lending" is not infringing. You're just trying to muddle the issue by intentionally conflating separate acts.
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To make it easy to understand here is a breakdown.
illegal intent to willfully brake the law + lending = illegal
lending = legal
So in your example the guy would be innocent in most jurisdictions because it is missing the "intent to brake the law" part in it.
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Please explain how the lending itself is in any way legally infringing . If you lent the disc out with the intent to copy and post it on the internet, then you (or at least the party you lent the disc to> are guilty of infringement, making the claimed prohibition on lending irrelevant even if it WAS actually illegal, according to the example you've provided.
Can you give an example in which lending, on its own merits and not attached to an existing and separately punishable infringement, is illegal, or even worthy of being an offense?
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The notice in books of that sort (including some I've contributed to) covers ONLY the NEW material in the tome.
But, since you've obviously never contributed anything creative, you wouldn't know about such things.
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I think it depends on how you interpret the term "unauthorized" that precedes all the verbs in that sentence. Does "unauthorized" refer to A) actions that are not expressly permitted by the copyright holder B) actions that are not expressly permitted by the copyright holder but also not permitted by copyright law or C) actions that are not expressly permitted by copyright law alone?
Based on other notices I've seen from other copyright holders, they seem to refer to A and pretend that fair use doesn't apply at all, while also pretending that A is a legally correct interpretation of C. It's rare to see copyright holders every acknowledge fair use without being challenged on their claims or otherwise prompted to.
They benefit from lying about what's legally authorized by pretending that they must expressly approve all uses and they have no consequences for the lie. If a consumer is ignorant enough, they might believe they can't lend the CD to anyone, which theoretically (in the minds of the copyright holder) might lead to more sales.
I can't imagine a scenario where lending would be legally unauthorized except in the absurd scenario of first sale not applying to products made outside of the country (but then, I would argue, copyright wouldn't apply either since you can't have it both ways - and I imagine the general public wouldn't stand for that either).
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buying(legal), ripping(legal, there are no DRM in CDs to circumvent), lending(legal), friend ripping the borough CD(illegal).
The only clear case of infringiment is if the your friend actually makes you know that he is doing something illegal, otherwise you got nothing.
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It is missing the part that make it illegal and that is intent to willfully brake some law and using the act of lending to make it happen, the lending itself is without consequence and perfectly legal.
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The article would have been better with a more questioning debate angle about what should be included in the disclaimer on a cd. It is a hard choice given the little space on a cd-cover.
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Um, no, that's not infringing either. If you copy the CD, then you are infringing on the exclusive right to copy; if you post it on the Internet, then you are infringing on the exclusive right to distribute. My loaning it to you does not constitute infringement, even if you do those things with the copy I loaned you, because there is no exclusive right to loan.
In extreme circumstances, I might be guilty of contributing to infringement, but lending itself is not an infringement of copyright. It simply does not infringe upon any of the rights enumerated in 17 USC 106, and until one of those rights is infringed upon, no infringement has occurred at all. (At least not under U.S. law.)
In essence, you are committing copyfraud yourself: claiming restrictive rights that copyright simply doesn't grant.
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No, they couldn't. They would have to have knowledge of the infringement, and take some sorts of affirmative steps to contribute to it. Merely lending the disc would not be enough, even if the person you loan it to ends up infringing with it.
In any case, the act of lending wouldn't itself be the problem; it would be the act of intentionally materially contributing to direct infringement that gives rise to liability. Lending a CD is no different from any other act in this regard.
It's like loaning someone your truck: you can face secondary liability if you know that they're going to use your truck to haul bootleg DVD's (or whatever). That doesn't mean that copyright holders have the right to prevent everyone from loaning their truck to a friend.
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My hypo was more than mere lending: "Some lending clearly would be infringing, such as if I lent you the disc with the intent for you to copy it and post in the internet for all to download."
In any case, the act of lending wouldn't itself be the problem; it would be the act of intentionally materially contributing to direct infringement that gives rise to liability. Lending a CD is no different from any other act in this regard.
The lending to you is what makes me the contributory infringer. I have done no action other than lend it to you.
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But you know that don't you Joe, you just want to mess around and try to confuse those who are not in the law profession to try and create sympathy towards your positions.
That is your intent, you are not stupid and this is a rooky mistake that no law student would ever make, a lame pro would try to do it in court hoping to get to the dumb jurors though.
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That's not at all my intent. I'm not trying to confuse anyone. I think copyright notices are usually boilerplate language that focus on prima facie infringement, not on the possible defenses one might raise. It's like if I post a "No Trespassing" sign in my yard. In general, you don't have the right to trespass. But under certain facts, your trespass would be justifiable. It's not fraud for me to say "No Trespassing" even though some people might have a defense to a trespassing claim. Regardless, I don't think this fraudulent over-claiming, if that's even what it is, is a problem. Where's the harm?
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If you have intentionally facilitated the copying and distribution of the CD, then you have done much more than lend it to me.
What makes your scenario infringing is the unlawful copying and/or distribution by the person you lent your CD to. What makes you liable is intentionally facilitating that infringement. That your action is "lending" is not the issue. So long as your lending doesn't intentionally facilitate unauthorized copying or distribution, it is beyond the reach of copyright law altogether.
Simply put, you do not need authorization to lend your CD to anyone. And copyright holders do not have the power to authorize lending, separately from the power to authorize copying or distribution to the public. They no more have the power to "authorize" private lending, than they have the power to "authorize" loaning your truck to a friend. Any copyright holders who claim that they do are committing copyfraud.
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Well, even posting it on the internet *might not* infringe on the right to distribute -- as there is still somewhat unsettled law as to whether or not "making available" infringes on the distribution right, or if actual downloading must also occur...
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No doubt.
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Still no basis in any sane country's law for that.
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That doesn't seem at least a little misleading?
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So I'm liable if someone STEALS the CD. Great.
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They seem to be implying that their authorization is necessary for lending at all.
If they mean legally unauthorized lending is prohibited, then they're essentially saying "illegal actions are prohibited by law." That just ends up being a meaningless tautology.
So either they're making a meaningless statement of law or else they're trying to convince consumers that they have more control under copyright law than they actually, legally have.
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Kickstarter is just the beginning.
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Re: letting others listen/view
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But if we got to the point that the police are knocking down doors over unconfirmed violations of the DMCA, we truly will live in a police state and such actions by the police will be the least of our problems.
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1) Friend gets new CD
2) We ride around in his car and listen to it
3) If good, more of us buy the CD
4) If bad, we ridicule it
I'm sure certain people would like to make this activity illegal. I mean, if we don't all buy the CD individually and then judge how good or bad the album is, aren't we also just dirty pirates!?
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It's a cheap shot, but I can't resist...
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Well there you have it. Hijacking basic physical property rights in broad daylight.
I've had it with people who make excuses for this nonsense.
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LENDING: clarification
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Re: LENDING: clarification
Once you sell it, you no longer have control. It becomes someone else's property. That's how property works.
Isn't it great how these "artists" only care about morality and law when it's their rights under consideration.
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People don't buy CDs with content on them because they want the physical object. Nobody expressly purchases a piece of media with content by a specific artist to get an expensive coaster for their coffee table. They are purchasing the content on the media and the media is...well, just a medium for the delivery of that content.
So yeah, as far as the consumer is concerned, regardless of however IP maximalists and their lawyers and lobbyists have manipulated copyright law over the decades, the consumer owns that content. The ability to legally make a backup copy of the content is an acknowledgement that the content is the thing of value to the consumer. Sure, the companies call it a license for the content, but if that were true, the license would exist without the media and you would have a right to that content regardless of retaining the media it originally came on.
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As for licensing, show me the agreement I signed when I purchased the CD, and then we'll talk.
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Distribution rights, performance rights, reproduction rights, etc.
Copyright is a artificial monopoly mess, that is why is so dangerous.
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That would be like purchasing a book that said you were only allowed to read it on tuesdays; just because the copyright holder has legal rights to the content, it doesn't automatically mean they have the same or any rights to the object the content is in/on, after it's been purchased.
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It seems you are confusing a licensed physical copy with the rights granted by licensed digital copy. Once I have a licensed physical copy, I own that copy and can do anything I want with it except copy it. A licensed digital copy is different. That may impose restrictions on the transfer of that license which would restrict me from lending it or selling it (although this is something that will be addressed soon through the court system).
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I know how much you like made up things like "copyfraud," so here's another one for you--"copyblight": http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033105
It's made up by a law professor, just like "copyfraud," so you can sell it really hard. Go get 'em!
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Better watch it Joe, THE LAW IS THE LAW..
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Since your masters indulge in copyfraud, boy, it's your duty to try to claim it doesn't exist.
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https://www.google.com/search?q=copyfraud&ie=utf-8&oe=utf-8&aq=t&rls=org.mo zilla:en-US:official&client=firefox-a&channel=rcs
Jason Mazzone, an Associate Professor of Law at Brooklyn Law School used the term in 2005.
You are a day late and a dollar short... as always Jo(k)e, you are a Joke, and not a funny one either.
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So are you agreeing that copyfraud is a problem that needs to be addressed? Seems like you are.
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That's rich coming from the clueless jackass who failed miserably at trying to redefine the meaning of property.
Hey Joe, why don't you just try an envy footer like OOTB's on the Streisand Effect?
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Tell you what, I'll make you a deal. I'll stop using the word "copyfraud" if you stop using the word "pirate". Can't promise I won't use "copyblight" in the future though. That one is too good to pass up lol. :)
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This is why I mostly ignore the license/sale issue. I treat them all as a sale. I own them, and I do what I want with them the same as any other property I own. I don't care what the law says about this. The law is a joke.
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It's just not.
Not that there aren't some trying to change all this, but at least they haven't succeeded yet.
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Is not really consistent with:
"this is clearly copyfraud"
Unless you know where the disc was made. Do you?
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http://educypedia.karadimov.info/electronics/antennawlanbiquad.htm
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Copyright issues and the Environment
Also, I am an advocate of reuse and recycling of materials, so it is sad to hear that artists would not back the idea of the resale of old discs that one doesn't listen to anymore, just to throw that old CD in the garbage...shame on the industry for supporting destructive practices.
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but what about
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Would the RIAA consider this a "job gain" as the guy that dies had a job?
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Copyright question
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Guess what?
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www.bigmeathammer.com
You have to love old school wacky punk rock.
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lending CDs
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What a dumb article.
Prohibiting lending is indeed a right they have and thus it is in no way copyfraud, this article on the otherhand...
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All rights reserved
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it will probably be able to tell you that "lending" and "copying" mean two completely different things !!!..
(I know that will surprise you Masnick) !!
Also "word of mouth" does not mean "lend someone your CD's"..
word of mouth, means just what it says, otherwise it would say "noises on a CD"..
so someone saying word of mouth is important, is not saying "sure lend your CD's to other people, so they can copy it", it means TELL others how much you like (or dislike) the product..
Lending is not generally illegal, making an illegal copy without having the rights to copy it is illegal..
But when you get your dictionary Masnick, it will all become clear..
We know you have a lot of trouble with the simple meaning of common everyday words.. Keep working on it, you might get better.
You could ask your children for help, I am sure they are going to school, and clearly could teach you much.
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Copyright gets more ludicrous all the time...
But the copyright holders... geez, you'd think that they believe that they were never educated, trained, or inspired by anything or anyone but themselves and that they owe nothing to anyone, least of all the society or culture that formed them. For people like this, I think it's best to ignore them entirely--don't buy their stuff, don't listen to (or watch or read) their stuff... just pretend they never even existed.
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USELESS WARNING
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What A Joke
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First sale rights in CDs are already limited
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Possibly someone who suffered a stroke and just wants to hear a little bit of music we used to listen to.
AJ: You are corrupt and morally bankrupt.
Please die soon.
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OK, sure, so 17 USC 109 disallows commercial lending. It must thereby be read as allowing some kind of noncommercial lending. Now, if case law has not resolved exactly what kind of lending qualifies as noncommercial, so what? That doesn't change the fact that the record company was making an overstatement. There are still situations where lending is allowed by law, even if the record company doesn't authorize it. For example: lending by a library, other noncommercial lending (as supported by case law now or in the future), and fair use.
So the fact remains that the copyright owner can expressly forbid certain uses, yet they'd still be wrong to say or imply that the law prohibits those uses. So yes, with their general warnings on CDs, they've overasserted their rights...this sure sounds like copyfraud to me.
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Laws aren't put in place to tell people what they can do, but rather to tell people what they can't, for sheer simplicity/rationality sake. Therefor, if there hasn't been any rulings either way, the assumption would default to 'lending of that sort of totally legal'.
And trying to use the 'commercial advantage' bit to cover lending between friends and family? That's a serious stretch and you know it, and something I highly doubt an unbiased, informed judge would consider valid for even a second.
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"... you're studying to be a lawyer, you should know this."
He's studying to be A lawyer, not necessarily a GOOD lawyer. So in his defense, he shouldn't necessarily know this.
But you are correct. Laws tell people what they can't do, not what they can. Ergo if there isn't specifically a law on the books AGAINST something then by default it is legal until such a time as there is. It doesn't fall into a "grey area", nor is it a "loophole" or any of the other things people like AJ or OotB would have you believe. IT IS LEGAL. End of story.
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Re: Re: Re: First sale rights in CDs are already limited
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What's most shocking is....
After 25 years in the music business, all I'll say is that 'contracts are made to be broken'. If you don't make a product customers want to buy, they're gonna steal it. If an artist doesn't want to record, they won't show up for a session. If labels don't have money to record, then hobbyists flood the marketplace.
I'm happy to be an independent label with customers who want to see us stay in business and pay us to do so.
This has been a fascinating read about our culture. :)
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I never lend CDs
Copying a CD is a trickier. To get around that restriction I note that the copyright doesn't mention copying part thereof so I snip 1/2 second off the end of each track.
Public performance. It is annoying having to advise all neighbors within hearing range of my 500 watt stereo system to wear ear plugs whenever I play a CD. I now take out an advertisement in the local newspaper list all times that music will be played. I am billing the copyright owner for the earplugs.
I have had my car sound proofed as to adhere to the broadcasting restrictions.
Reproduction. My wife is post menopause so reproduction has ceased plus I cannot reproduced something I never produced in the first place.
All solutions are as idiotic as the restrictions.
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Reward fans who buy and share
http://e27.sg/2012/12/28/tell-my-friends/
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Perhaps lending in this case has an older english meaning, such as hireing means renting.
Could the lending refered to here actualy have to do with using the recording, or future sales of the recording, as collateral for a loan?.
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However, the key word is 'unauthorised'. Lending, I suspect, doesn't mean letting your mate listen to it, it means lending it out from a library or similar (Blockbusters for example), and if I wanted it to be put in a library I could say 'yes', and if I didn't, I could say 'no'.
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Authorized or otherwise
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