When we started the Between Lawyers blog, we wanted to look at the question of how do you try to comply with the law when the application of the law is uncertain and there are no settled cases to give you any good level of comfort, let alone certainty. In other words, what do we do when technology starts to outpace the law?

My usual approach to these areas is to ask the simplest, most basic practical questions I can and see whether there are clear answers. Then I complicate the matters a bit to see where we get into the gray areas. I also assume that most people really do want to do the right thing and behave in ways that comply with the law.

Lately, I’ve been thinking about copyright law, music, and changing technology, with the iPod as my example.

I want to think about what I can confidently do with my music collection today. I’m looking for what I’m certain I can do if I take a very cautious approach to the legal issues.

Let’s assume that I want to make no commercial use of musical recording whatsoever – I just want to listen to the music. Here’s what I’m certain of (until someone corrects me):

1. If I buy a music CD, I am certain that I can play it on one CD player. I’m quite confident, or at least I was until those DVDs with geographic limitations came out, that I can probably safely play the CD on all of the CD players I own, wherever I might take them. I am assuming there are no limitations under a license that I don’t realize exists.

2. If I download a song from the iTunes store, or a similar online digital music store, I can play the song where the license permits me to play it. In most cases, I won’t run into any limitations that will bother me, but I must admit that I do not understand completely what limitations there may be in pulling a song off my iPod and using it on another device.

In example #1, there are some standard copyright principles, some specific laws, some history, and some common sense at play. In example #2, a specific license governs our use. Let’s assume that cassettes, LPs, videocassettes and the like fall into category #1 and commercial digital music probably falls into category #2.

The famous Betamax copyright decision focused on the notion of time-shifting, or, in a difference sense, control over when we watched a program we recorded so we could view it at a more convenient time. Despite the anguish at the time, history suggests that allowing the normal types of copying and time-shifting resulted in a great economic boon for the entertainment industry.

We now live in an amazing time when I can listen to a song on a variety of players, indoors, outdoors, in the car, on a network, wirelessly, and many other ways. Increasingly, especially after I own an iPod, I want to listen to my music where I am, in the most convenient way possible. I do not to become a licensing or copyright specialist.

Here’s where the difficulty lies. I believe that what I am doing is playing my music and listening to it. Unfortunately, in our digital world, what is also happening is that we (or our computers, other hardware and software) are making many, many copies of the digital information carrying the song as we listen to our music in many ways and in many places.

Copyright law deals with reproductions and copies. What copying is allowed and what is not? Is automatic “copying” as part of the normal mechanical or computer process (e.g., your browser caching a copy or two of this page while you read it) an infringing kind of copying? There certainly have been court decisions that would lead you to that conclusion, even though that’s a very unexpected result

Historically, we have looked at “fair use” to cover the normal, expected ways that someone might make use of a creative work without infringing the copyright. There’s a well-known four-part test for determining whether a use is a fair use. One of them is the extent of the copying. .In a digital copy of a song, you have a perfect copy of 100% of the work. You fail that part of the fair use test every time and you have to make your stand on the other factors, which, frankly, don’t relate to playing your favorite music wherever you want to play it.

I’m coming to the conclusion that “fair use” really doesn’t apply in the setting of the normal use of copyrighted works, especially when you consider the common examples of what uses “fair use” is meant to protect - , comment, news reporting, teaching, scholarship and research In fact, fair use is a notion that applies to certain specific types of public uses rather than private or personal use. You can’t really stretch it to the point of covering the standards uses we all make in the normal course of playing our music.

Here’s a list of a few things that I might do with music these days and my thoughts about whether it is clear under current law whether I can do them.

1. “Ripping” songs from CD I have purchased to copy the songs so that I can play them on my iPod, computer(s), PDAs, and other devices. Make no mistake, this is copying. I feel reasonably comfortable about ripping a song into iTunes and putting it onto an iPod, but I must admit that my comfort comes from the fact that “ripping” is a feature of the software and that Apple and the recording industry seem to have come to an accommodation on this issue. I’m not sure that I would have the same level of comfort if I only looked at the statutes and case law. When someone starts to have a half dozen or more copies of the same song file on various drives and devices, probably in a variety of file formats, I start to wonder whether you reach a point where it can be argued that having “too many” copies can expose you to liability.

2. Converting analog recordings to a digital file format. Again, largely because of the hardware and software that is available for this purpose, I’m reasonably comfortable, but I wonder about copying and reusing old recordings with technologies that were not contemplated at the time of the pressing of the original vinyl.

3. For convenience, storing all my digital music files on a server on the Internet so I can access all of my songs wherever I am. On convenience grounds, this is a very reasonable action to take, especially if I’m concerned about device failures. However, the Napster-era decisions make me nervous about this use, even if I have password-protected access to my server.

4. Using CDs or digital files that I haven’t purchased to make copies of analog recordings that I own. If you have read this far, you now understand where I was going with all of this. If you rip your CD collection and put it on your iPod, you’ll notice that you have songs on cassettes and LPs that you’d also like to have on your iPod. You have three standard choices. (1) Purchase the songs you want individually from the iTunes store or an equivalent source. Unfortunately, if you have thousands of songs, you potentially pay thousands of dollars for copies of songs you already purchased once. (2) Buy some hardware and software and convert your analog songs to digital in a real-time fashion that could take months. (3) Pay a service something like $6 to convert your analog recordings to digital files.

However, once you start thinking in terms of control, convenience and time-shifting, other options become quite logical, if you proceed from the premise that you already bought the song once. For example, you could save time by checking out CDs of albums you own from a public library and ripping them. You might borrow CDs or copy digital files from a friend. You might have other ideas as well. For example, think about a website where you signed an electronic affidavit that you owned a cassette tape of LP version of an album and then could download the digital files at a very small cost. After the Napster-era litigation and decisions, that one, logical as it may be, is probably a non-starter.

Again, assume that your purpose is always simply to listen to the music how and where you want.

Let’s consider some other examples outside the music realm. Assume that you want to print out a copy of this blog post to read at a more convenient time because the post is too damn long. That should be OK. There’s probably an implied license to print out a copy. How about two copies? Three? Emailing a copying to a friend? A few hundred friends? Printing as a PDF file and keeping the PDF files on several computers?

How about this one? What if I routinely print out paper copies of blog posts I like and store them in manila folders in a file cabinet? Should be OK, right? What if I “print” them as PDF files, store copies of several computers and use the features of Adobe Acrobat to create a great research collection or personal knowledgebase? Same answer, right? Maybe not. I don’t feel as comfortable with my answer as I did with the file cabinet answer. I’m not sure why – either why I’m uncomfortable or why there should be any difference.

I’ve lately started to feel, as have others, that there is a certain common sense approach to the use of digital copyrighted materials that (1) reflects our normal expectations about what we should be able to do with a copyrighted work just to use it in ordinary ways that do not seem to hurt the author of the work and (2) recognizes that the more we try to stretch the notion of fair use to cover these normal uses, the more we risk fracturing the protections that the fair use doctrine does provide.

My thought, and what prompted the title of this post, is that we are overdue for a reconsideration of the practical meaning of copyright law for real people in a digital world and that the subject of defining a “personal use” exception to copyright infringement that reflects the way people normally behave that would be separate from “fair use” should be considered and debated, while leaving the “fair use” doctrine in place to cover what it was intended to cover. In a sense, I’m advocating something in the spirit of what my friends at rethink(ip) raise in the title of their blog.

This area now seems to be one where the technology, and the uses of the technology, have zoomed way ahead of where the law is. Unfortunately, it seems to have moved so far ahead that I can’t see that there are any certain answers to very basic questions about what confidently can be done under the copyright law, as it now exists. I’m hoping that other people can help me. As a practical matter, we all have to make a determination about what level of legal risk and uncertainty with which we are comfortable. As you move to the conservative and cautious end of the spectrum, I think that you find very little ground to stand on.

As I said, I don’t have the answers, but I’m happy to raise the issues and offer Between Lawyers as a forum to discuss the issues.

Note that I did not go so far yet as to suggest that I should be permitted to buy bootleg recordings of concerts that I actually attended because they are simply ways to supplement the memories I already have.