back to article Digital player maker 'incited consumers to break the law', says ASA

A company must change the way it advertises its digital music player because the ads encourage people to copy music in a way that breached copyright law, the advertising industry regulator has said. The Advertising Standards Authority (ASA) has told 3GA Ltd to find a new way to advertise the Brennan JB7 machine, which is a CD …

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  1. Abstractnoise
    WTF?

    Eeeh... what?

    So... if an electronic copy of my blog is held in an ISP cache to speed up local access without my express permission (not that it ever will get enough visitors to warrant such treatment) then does that mean I can sue the ISP for breach of copyright?

    What about the Wayback Machine/Internet Archive? Can I sue them for leeching and archiving content too?

    1. jonathanb Silver badge

      No

      Because there is a specific exemtopn for cacheing. The Internet Archive operates under US law, but you can use your robots.txt to tell them not to copy your site.

      1. alwarming

        What about copyright free music ?

        What if I'm copying old beethoven type music ? Is that covered too ? Is the ad playing a copyright music in the background ?

        1. Northumbrian

          what copyright-free music?

          If you are listening to a recording of music by Beethoven, then someone is performing it and the performance is subject to copyright. (This why Desert Island Discs never turns up on iPlayer!)

          If you are actually performing yourself, then you are presumed to have acquired a legal copy of the music - which someone has edited, laid on the page etc etc, and that edition is subject to copyright.

          If you are listening to an ad which has music in the background then the advertiser/ director/ producer of the ad has paid a fee for the use of that music - possibly to the person who composed it (though s/he may have sold all their rights to a record company years ago) , possibly to the people who are performing it (though they're likely to be session musicians and get a one-off payment) and almost certainly to the firm of copyright lawyers who enforce it. Ditto for any music you hear on a TV programme.

          If you make a permanent copy of any TV programme, then you are probably breaking copyright law, since you are only legally entitled to make video recordings for the purposes of "time-shifting" after which you are expected to wipe the programme.

          Whether you are displeasing the advertisers when you copy an ad is much more difficult to know - probably not. They do, after all want you to see the ad as much as possible. If, however, the composer of the catchy tune is being paid every time it's shown live, then s/he will probably be cross that you're listening to their music without them getting any payment.

          And copyright gets much more complicated than that! For example, someone wrote an unauthorised biography of Cole Porter, and was not allowed to mention even the title of any of his songs in the book - song copyright is very tight, but only lasts 50 years - let alone quote from any of the lyrics.

          Literary work is usually in copyright for the lifetime of the author plus 70 years. One of the first world war poets is still in copyright, even though the man has been dead more than 70 years, because his literary estate brought out a new edition of his poems with some previously unpublished material in it - this extended the copyright of everything in the book for another (I think) 50 years.

          What actually goes on may bear very little resemblance to the legal position, but none the less copyright lawyers do not starve.

          1. Yag
            FAIL

            I still remember a few songs...

            Is my brain guilty of copyright infringement?

            Fail because it's probably one of the most over-used joke about copyright laws

  2. Mad Mike
    Thumb Down

    Every Music Player

    Surely, the same must apply to every device that plays music or video or whatever. If you rip CDs for your MP3 player or DVDs to a media player, that's illegal as well. If you download some music from a central store and then simply move it to another device (say a MP3 player), that's illegal as well. The ASA seems to have single-handedly made the entire iPod etc.etc. group of devices illegal!! Perhaps now, someone will suit out the stupid copyright laws in this country and around the world.

    Also, presumably every manufacturer of these types of device should now be prosecuted for producing these devices? Otherwise, they'll have to withdraw legal action against loads of people/companies for copyright breach?

    Talk about selective implementation of a law!!

  3. Anonymous Coward
    WTF?

    Eh?

    Since when was it illegal for me to rip my CD's onto my computer?

    I was under the impression if you owned the discs, you can 'convert' them into an alternative format.!

    I'm sure you'll tell me if this is incorrect.

  4. nichomach
    Go

    Hadn't run across the product before...

    ...will certainly look into it now...

    1. Jolyon

      Yep.

      Great advert.

    2. Greg J Preece

      From my admittedly limited understanding

      IANAL, but copying CDs in any way has always been illegal. However, it's tolerated simply because if they started actually enforcing it and arresting people for ripping their CDs to their DAP, there'd be an absolute uproar and the law would be changed immediately.

      Better to leave the law in place, so the music industry can arbitrarily threaten people with it. ;-)

    3. M2Ys4U
      Unhappy

      Always

      You are indeed incorrect. There is no right to format-shift in UK law and there never has been. You may be thinking of the USA's "Fair Use" clause which doesn't exist in the UK.

      The only 'shifting' right is to time-shift broadcasts (since 2003).

    4. Anonymous Coward
      Anonymous Coward

      just needed

      Just needed to double check, but no, it's illegal to make private copies of music you own in the UK

      To quote from Wikipedia,

      "In the United Kingdom, making a private copy of copyrighted media without the copyright owner's consent is illegal: this includes ripping music from a CD to a computer or digital music player.[11][12] The UK government has made proposals to allow people to make copies of music for personal use.[13]. According to one survey, 55% of British consumers believed ripping a CD to be legal, and 59% admitted to doing it.[14][15]."

      1. Anonymous Coward
        Joke

        But don't forget...

        the "bend over" clause is still in effect...

    5. Chad H.

      Not in the UK

      The UK Doesnt have the same fair use provisions as in the US. In the US its okay.

    6. Annihilator
      Alert

      And software

      You would think iTunes (and every other music manager) and its "Import CD" function is equally invalid in this country then. Presumably the trick is not to advertise it as such.

      1. Anonymous Coward
        Anonymous Coward

        Good point

        From http://www.apple.com/uk/itunes/what-is/player.html

        "Goodbye CDs. Hello digital.

        Import your CD collection to iTunes, and listen to your music in new and better ways. Just pop a CD into your computer. If you’re online, iTunes automatically finds the album, artist and song names. You can even choose to download cover art. And just like that, iTunes converts your music to a digital format. So long, CD clutter. Welcome to the digital world."

        Does that count as advertising if it is on their site, or would it have to be specifically in a printed advert?

        1. Joe 3
          Grenade

          Complaints against Microsoft and Apple submitted!

          Not that I have anything against MS or Apple, but perhaps an upheld complaint against these two giants will get some headlines and help make the public aware of this stupid law.

          URLs:

          http://windows.microsoft.com/en-GB/windows7/Rip-music-from-a-CD

          http://www.apple.com/uk/itunes/what-is/player.html

          The MS page even suggests that you can burn copies of CDs too! Shocking, illegal behaviour...

        2. Phil Endecott Silver badge

          Advertising or not

          > From http://www.apple.com/uk/itunes/what-is/player.html

          >

          > "Goodbye CDs. Hello digital.

          >

          > Import your CD collection to iTunes

          My guess is that that does not count as advertising - it's "Editorial" - so the ASA will not be involved, and Apple (or whoever) less reason to worry. If they put that in a printed advert in this country they would have more of a problem. Remember the issue in this case is not the illegality of the copying per se, but rather that by suggesting to customers that they can do it when in fact they cannot (legally), they are being misleading about the product.

          1. Wyrdness

            Websites are advertising

            From March 1st, the remit of the ASA has been extended to include "Advertisers’ own marketing messages on their own websites" (http://www.asa.org.uk/Regulation-Explained/Online-remit.aspx)

            Since Apple and Microsofts websites are advertising their own products, then this would fall within the ASA's remit.

            So complain away!

          2. This post has been deleted by its author

        3. Anonymous Coward
          Anonymous Coward

          as of 1st March

          ASA covers websites too.

      2. Anthony Cartmell
        Jobs Halo

        iTunes

        Hands up everyone with an MP3 player who *hasn't* imported music from their CD collection onto it?

        1. Anonymous Coward
          Anonymous Coward

          I'm raising my hand

          Because I have only ever imported other people's music onto my MP3 player!

    7. Flocke Kroes Silver badge

      Read the license

      Some places that distribute MP3's do so with a license that explicitly permits copying to your own portable devices. Some DVD's come with a version of the film that 'can be played on portable devices'. Ask a lawyer if that means there is a license to copy, and not just an invitation to be sued. Some music industry executives have stated that they do not object to copying CD's to the owner's MP3 player, but I have yet to see a license that clearly gives permission.

    8. irish donkey
      Thumb Up

      Regularly advertised in Private Eye

      Its a excellent product.

      1. Chris007

        Why would I buy this over an iPOD (or equiv)?

        I don't own an iPOD or JB7 but I do see the ad's in private eye all the time and think to myself "Why would I buy this over an iPOD (or equiv) - what does it offer that an iPOD (or equiv) doesn't"

      2. Anonymous Coward
        Anonymous Coward

        It made me look twice when I saw the ads in PE...

        ...but when I read the FAQs I realised it didn't play open and lossless formats such as FLAC. It's a shame because I've always wanted a lounge-friendly juke box.

    9. jonathanb Silver badge

      Yes

      Ripping CDs to your mp3 player is illegal.

      However, if you buy music from itunes, you have permission from the copyright holder to use it on five different machines that you own (laptop, apple tv, ipod, etc), so that is legal.

    10. Northumbrian

      In the UK, but ..

      a recent article in a computer magazine told you how to carry out this sort of ripping - if you live in Germany, where format-shifting has been made legal.

  5. copsewood
    Pirate

    copying is what computers and electronics do

    From the tone of this article, it seems either that the ASA have taken their propaganda pills or they have been leaned on. Either way they seem more interested in the law being used to prop up copyright interests than in those who manufacture equipment or provide services with potentially infringing uses having freedom of speech to market their products.

  6. A J Stiles
    Stop

    Fair Dealing

    "A complaint was made to the ASA that the advertising incited people to break the law because copying music without permission was a breach of copyright law. The ASA agreed and said that the advert should be changed."

    Except it *isn't* actually against the law. If it ever got as far as a court, there isn't a jury in the land that would dispute that your use of the material qualified as Fair Dealing.

    It's probably never going to get as far as a court, though; because (1) the record companies don't want people knowing they have a right to continue making use of material they already own, and (2) the police like being able to obtain a search warrant on the basis of a copied tape or CD spotted in a vehicle.

    1. M2Ys4U
      Stop

      Fair Dealing doesn't allow that

      Fair Dealing is not at all like Fair Use in the USA. Fair dealing is an exhaustive listing of allowed activities, and format-shifting and/or backing up is not allowed (unless the backup is of a computer program)

      1. Anonymous Coward
        Anonymous Coward

        Curious.....

        Does it define a computer program? Or could a good lawyer argue that CD Audio is no different (in principle) to a parsed language?

        I.e. if you backup software written in PHP, you're simply backing up textfiles (as it won't act as a 'program' without the parser)

        So CD Audio is the same basis, it doesn't do anything on it's own until it's processed

        Weird one maybe, but wonder if you could argue it?

  7. SuperTim
    Troll

    ripping vinyl, tapes and CDs is perfectly legal...

    unless they are copyrighted (due to our silly archaic laws)

    You can rip any uncopyrighted works as much as you want. There must be a lot of old 78's out there that are no longer protected and if I happen to have recorded myself on to tape, then i may want this on my HDD player.

    Butt out ASA with your massive assumptions!

    (Seriously though, where can I get one of these? I have loads of metallica stuff I want to load on to it!, Lars? any ideas?)

  8. Cameron Colley

    A nice reminder.

    That in the UK you are not allowed to make any copies of any digital media you have unless explicitly stated by the copyright holder. There is no "fair use" and anyone ripping CDs is breaking the law.

    What we need is for someone to publicise this widely and force either the police to act or the government to make a pre-emptive change to copyright law.

    Of course this will never happen because, as pointed out by A J Stiles, there's too much vested interest in things staying as they are.

    1. Anonymous Coward
      Thumb Up

      @SuperTim

      www.brennan.co.uk

      1. SuperTim

        Thanks Lars,

        Now, please make your music as good as it was when Cliff Burton was still alive...your modern stuff is rubbish.

        1. Anonymous Coward
          Happy

          Ah!

          You obviously haven't heard Havok, Evile and Municipal Waste! Picking up the torch dropped long ago, they made me feel like my old 16 year-old thrash-head self again, instead of a sad 40 year-old metal-head!

  9. Anonymous Coward
    Black Helicopters

    What I want to know it...

    Who made the complaint?

    1. RichyS
      Thumb Down

      Exactly what I was thinking.

      I mean, what a complete arse.

      1. Dr. Mouse Silver badge

        It depends...

        If it was done to bash the company, they are twats.

        If it was done to highlight the stupidity of the UK copyright law (which it has), it's rather clever really.

        1. nm123
          Coat

          Actually....

          Yes, the whole point was to point out how stupid and archaic the UK law is, and also the fact that the vast majority of people in the UK have no idea that such an outdated law is on the statute books and that they break it on a daily basis. If we don't force people to actually use this law and make decisions based upon it then it stays on the statute books and might eventually be used by bad people, for bad things. Nobody is going to lobby to change the law unless it gets in their face and forces them to think about it.

          I do feel bad about the fact that this might have caused a lot of hassle to the company involved, against whom I have no grudge whtasoever, and I sincerely hope that this is more-than offset by the free advertising (and general goodwill) that this ruling seems to have given their company. I hope that this ruling can be used as a platform to lobby to get the law changed to bring the UK's laws up with some of our European cousins, who already have policies where the ownership of a CD confers the right to copy it for personal use. Surely that makes sense in the 21st century?

          But maybe to actually make this happen would take a ruling against someone like Apple, rather than Brennan... I don't know.

          1. Northumbrian
            Welcome

            I hope it works

            These copyright laws do need a complete re-write, but if they get one we will find that it favours Rupert Murdoch and Disney, since the American Music and Motion Picture Associations' lobbies are very well-funded and very powerful. We aren't quite as pigheaded as the Germans about avoiding US political pressure.

            Though I do get one piece of satisfaction from the current state of affairs. Every time I hear someone saying, "Those who have nothing to hide, have nothing to fear," I think to myself - I bet you've got some illegally recorded music, video or TV programmes in your house, and just never knew that it was illegal to keep those old VHS tapes of say, "Archer's Goon" (hat tip to the memory of Diana Wynne Jones who died a few days ago) - even though you can't buy a legal copy. They probably think that ignorance of the law is a defence too.

  10. bertino
    Paris Hilton

    So, if I buy a CD or DVD etc.

    Play it for 6 months, then it fails, can I get a new copy from the rights holder at cost+small admin fee?

    Paris, because she likes it both ways.

  11. Jason Bloomberg Silver badge
    Pint

    Excellent Publicity

    The ads will now no doubt have the obligatory astrix placed somewhere with a footnote that warns, "Copying music blah blah blah". People will carry on ripping the collections they bought, even downloaded and swapped - 'illegally' or otherwise - just as they always have regardless.

    One could even be forgiven for thinking they may have deliberately left the footnote off, shopped themselves, just to get the free publicity :-)

    If El Reg hasn't already done a review, I hope you'll consider doing so. Sounds like just the thing I need to copy my music collection to *

    * In compliance with licensing conditions blah blah blah

    1. Peter Simpson 1
      Thumb Down

      cost+small admin fee?

      Which conveniently happens to be exactly the same as the price you paid for the first copy.

    2. mark l 2 Silver badge

      you can get one for free

      If you purchase a CD from a store and after 6 months it no longer plays you can take it back to the store upto 3 years later under the sales of goods act in the UK and store is obliged to offer you a free replacement or refund

      This would even apply to places like entertainment exchange that offer second hand items as you would reasonably expect them to last for at least 6 months

  12. Will Godfrey Silver badge
    Unhappy

    I am not a lawyer

    However I seem to have read that in the UK it actually *is* against the law to make any copies of material you have bought (even if you are the only person who ever uses it) unless you have the copyright owners permission. The fact the people don't seem to get prosecuted for it is irrelevant.

    As this would be a matter of law, then a jury would not have the authority to decide against it, they could (and sometimes do) get round matters of law they don't agree with by deciding that they weren't convinced the supposed offender had actually done this.

    Having said that, in my personal opinion this stinks!

  13. Anonymous Coward
    FAIL

    OMG!!1!!one!1!!eleven!

    My Media Player just copied the entire track into RAM i didn't do nufink... the rozzers are coming for me help...

    sigh..

    Someone seriously needs to sort out this industry.. preferably via a correction bat.

  14. Flugal

    Great ruling

    That should bring all copright infingement in the UK to a stop overnight presumably?

    No?

    Oh.

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