The Absurdity of “Owning” Music: or, what do you do with CDs you’ve ripped?

• See also other posts and articles on the impossibility of “owning ideas.“

A recent minor controversy has erupted when a young NPR intern, Emily White, who, as one of her critics put it, “wrote a post on the NPR blog in which she acknowledged that while she had 11,000 songs in her music library, she’s only paid for 15 CDs in her life.” As noted in a post in support of Emily White (by someone coincidentally also named Emil White):

In the post, EW2 talks about how her boss recently moved his entire music library into the cloud (as have I, just like I’ve been moving my businesses into the cloud, making it easily internally accessible to our multi-city team). EW2 doesn’t think any of this is weird, it’s completely the norm to her. Just like when I shipped my massive CD collection home as soon as I digitized it if for any reason other than that I moved apartments quite frequently as a young person and lugging a large physical music collection around was almost impossible. Some music addicts pore over vinyl, others consume as much music digitally as possible because we can’t not (I’m the latter). To each their own. [See In Defense Of Emily White (The NPR Intern).]

This debate provides a good opportunity to illustrate some of the absurdities of the very idea of owning information and copyright law. Those who are in favor of copyright ought to give the following some thought. Copyright advocates—and, sadly, this includes some libertarians—maintain that a “song” (or a novel, painting, design, etc.) is ontologically a “thing” that can be “owned”. And that naturally, the owner should be the “creator.” However, under copyright law, customers who “buy” music do not actually own it. All they own is the concrete, material media which serves as a sort of substrate to embody or carry information, a pattern that can be detected by some mechanical music player to reproduce some pre-recorded sounds with some reasonable fidelity. For example, if I buy a vinyl LP or a CD, I own that physical object, but not the “copyright” in the patterns stored therein. When I buy it, I gain title to the physical stuff, and an implicit “license”, or permission, from the copyright owner, to “use” the item, and the copyright-protected information/patterns/logos therein, for certain purposes—basically, “personal use.” But I may not make copies of it, make a new song “based on” this one (that’s a “derivative work”), and so on. In fact selling or even giving the CD or vinyl LP to someone would be a violation of copyright, if not for the “first sale doctrine” which carves out an exception to normal copyright protection (which doctrine is currently under threat by the gatekeeper copyright monopolists—see Libraries: Prepare to burn foreign books, courtesy copyright law).

Another exception to copyright that has arisen is that owners of CDs and LPs can copy or “rip” the music contained on these media for backup or other personal, “non-commercial” use. So for example if I own a CD of Duran Duran’s Rio album, I own the physical CD and I have a license to use the copyrighted music on it for personal use; and if I copy that music to create MP3 files to load them into iTunes to play it on my computer and on my iphone or ipod, then under various exceptions this copying is generally tolerated, if only begrudgingly.

If I buy a physical media with a song on it, I own the media and have a license to the music on it. I can resell the item under the First Sale Doctrine, and I can copy it and make a digital backup of the file to play on my MP3 player. Now if I “buy” an MP3 or similar music file from Amazon or iTunes, I don’t own anything. I only have a license. So I cannot resell, loan, or even give the MP3 file as a gift to someone. After all, I might still have my own copy. So if I sold it to someone I still have it and so does my buyer.

But consider the case where I own a CD, such as the aforementioned Rio. I buy the CD fair and square. But I want to play it on my iPhone. So I rip it using iTunes. Now I have an AAC or MP3 version. I put the CD in a dusty closet for “backup” or archival purposes, but in all likelihood I will never use it again. Consider the following scenario:

• The CD is lost in a fire. Am I able to keep using the MP3 file I ripped from it? I don’t see why not.
• The CD is stolen by a thief. Now he has a copy of Rio. Am I still able to keep using my MP3 file? Who knows.
• I give the CD to my nephew, a poor college student. Am I supposed to delete my MP3 file now?
• I loan the CD to my nephew for a month. Am I supposed to “quarantine” the MP3 file for a month…? Who knows?!
• My computer crashes and I lose the MP3 file. Instead of trying to find the dusty CD up in my closet, I find a pirated copy of the album and download it, replacing my formerly legitimate MP3 copy with the pirated one, instead of wasting time re-ripping the CD. Is that a copyright violation? Probably. Does this make any sense at all? No.
• In the old days guys would make “mix tapes” for girlfriends. Sometimes you would record tracks off the radio, sometimes from LP’s or other cassettes, onto another analog cassette. Nowadays this or its digital analog would be considered “stealing.” But suppose you want to do this “legitimately.” You want to give your girlfriend an iPod loaded with 1000 great songs. So you have most of the CD’s, but you sense that you can’t rip them a second time, for someone else (you have ripped them all already for your personal use). So you buy 100 CDs, some of them a second time; you laboriously rip all 100 CDs; then you put this music on the iPod for your girlfriend. Now when you give her the iPod you don’t want to hand her a huge cardboard box with 100 CDs in it. She doesn’t want that. Just the iPod. So what do you do with the CDs? You can’t resell them, since that would presumably obligate you to erase her iPod. You don’t want to store them—most are duplicates. The only solution seems to be to destroy them. Have a good old fashioned book burning.

The point of all this is to show what absurdities, waste, and obvious moral outrages result from trying to treat nonscarce things (information and patterns) as if they are ownable, scarce things. This is one reason copyright (and similar things like patent) can never make sense and never be justified.