Radio Broadcasts and copyright

This morning I presented an ethical copyright question to a long time outspoken commentator and strong copyright proponent, John Degen. To say we do not see eye to eye on copyright matters would be to severely understate the point. None the less I was sincerely interested in his perspective of this copyright scenario so I posted it to his blog.

Alas, his only comment was to dismiss it as not an issue at all and that I should post it to my own blog where he could respond with his own off topic comment.

I am not surprised that he has a very black and white perspective.

Here is the scenario, as posted to his blog.

I have recently taken to listening to CBC podcasts of some of their great radio shows such as "Art of Persuasion", "Ideas", "Irrelivent Show", "Vinyl Cafe" and several others. It is great because all the shows are only a button click away on my cell phone and available on demand after the morning of broadcast.

One of the ones I want to listen to is their new drama "Backbencher" unfortunately for what ever reason they have chosen not to make this one available by podcast and their chosen time slot is inconvenient for me.

Instead I wrote a small Bash script so my computer could record Radio One over the Internet during the timeslot, convert it to an MP3, then send it to my cell phone. It is then almost as convienient for me as the CBC podcasts.

There are several questions that arise from this. Obviously CBC does not intend for this show to be available on demand, so is there anything ethically or legally wrong with what I am doing? Is recording the radio as I am doing any different than recording live television with your VCR?

I am genuinely interested and would appreciate your perspective on this.

Many people like to draw lines with copyright and claim to know what is right and what is wrong. I see this as an example of the huge grey landscape that copyright occupies. Do you see any grey here or is it all black and white to you?

In John's reply he corrected my assertion that these episodes were not available on line. They are in fact available for a cost from iTunes. But that does not negate the question of whether it is ethically or legally wrong to record the show for later private enjoyment, as you can do exactly the same thing with television shows which are also available for purchase via iTunes.

I am interested in anyone's view on the legal and ethical issues presented here, and I am looking forward to hearing John's view on peanut butter.

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Fair Use

My views on the ethics of the situation are in line with how the US government and US courts have interpreted Fair Use. Copyright must have limitations and exceptions to be respectable, and it needs to be respectable if we are to ever have a majority of citizens adhere to it.

The main 4 criteria articulated in US copyright law for determining if something is fair is:

(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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

For me the most important criteria for my personal evaluation is a combination between whether the activity is fully private (like time, device, and format shifting)(1) and whether the copyright holder offered me a license at all (4).

Morally, unless I signed an enforceable contract to the contrary, what I do with content, media, software and devices that legally enters into my home is my own business. Ownership of the tangible medium and the hardware have passed to me, and I don't recognise any alleged rights of the previous owners. The morally respectable rights of the copyright holders of the content and software end at my doorstep, and Copyright has no business in the bedrooms of the nation.

Morally, if the content is not available to me for licensing/purchase it is unreasonable for any claim that infringement is harmful to sound like anything other than immature whining. Here the most common culprits are regional restrictions, where the relevant content is not made lawfully available to Canadians. It would serve the interests of Copyright for the courts to adopt this interpretation, as it would increase the lawful availability of content to Canadians -- one of the alleged purposes of Copyright.

I consider what you are doing by making a private copy of content made available for you to legally receive in your home to be perfectly morally correct. This is separate from the fact that it is CBC content, and would apply to Canadian broadcasters to allege to be privately funded.

If you signed some sort of legally binding contract with a content delivery platform then there may be something different to discuss, but this is not the case in your example.

The legal issues are entirely different than the moral issues. Current Canadian copyright law is weaker than US law in an important sense, and that is that we have never had the balance that they have with their Fair Use. We have silly criteria activities have to fit within first, and then we have the fairness test. It means that our Copyright law can never keep up with changes in technology and have the law match what a reasonable person considers to be morally valid.

Since the most common uses of VCR's to time shift are currently infringements in Canada, your digital time shifting with less commonly available technologies would be as well. Obviously I think it should be legal, but I believe (IANAL, TINLA) that it is currently illegal.

This is where I will always part ways with the copyright maximalists who believe that any use of a copyrighted work should require permission, and that nothing else is "fair". This is of course except for the exceptions to Copyright that people like John push in the form of compulsory licensing, where he considers it to be fair to wipe out copyright in exchange for a compulsory license that flows through one of his favoured collective societies. Mixed messages on the support of copyright for sure, and I question whether John can be considered a "strong copyright proponent" given his willingness to hand other people's copyright over to intermediaries.

When collectives are voluntary for copyright holders where copyright is retained I see them as providing important financial service, but when they are a substitution for copyright in situation where free markets would work I don't see the moral difference between this scenario and commercial copyright infringement.

I've spent the time with Copyright to know that Canadian law considers most of these fair activities to be infringement, meaning most Canadians are inadvertent continuous infringers. When I have a chance to talk about this outside the copyright bubble, nobody believes that Canadian law is as restrictive as it is.

I don't think making the law regulate more activities will ever work, and in fact I believe it will make the situation worse. The more copyright regulates activities which average people consider to be fair and reasonable, the more they will consider copyright to be a dumb joke and infringe in ways which more of us would consider unfair and unreasonable.

There is both a tunnel vision and a bubble with copyright maximalists. They want the state (IE: taxpayers) to pay for all the enforcement and not lift a finger to enforce their statutory monopoly, and they want those privileges to be absolute. They are blind to just how offensive this is to most people. They increasingly isolate themselves from people who might otherwise be allies in ensuring that creative people get adequately compensated for their valuable contributions to society.

I largely stopped reading John's blog because I didn't want to have this type of extremism be top of mind. If I believed a majority or even a significant minority of fellow creators agreed with John's views I would drop out of the copyright policy debate and join the vast majority in continuous blissfully ignorant infringement.

Free/Libre and Open Source Software (FLOSS) consultant.