UK High Court Goes Even Further In Emphasizing That You Cannot Rip Your Own CDs

from the because-fuck-you dept

Last month, we wrote about an initial decision by the UK High Court to take away the private copying right that allowed people to rip their own CDs. This change in law had been sought by the public for so long that by the time it finally came into practice it didn’t really matter because (1) who the hell still buys CDs and (2) everyone who did already assumed that ripping those CDs was perfectly legal, because that’s the only sensible way of thinking about it.

Yet, last month, the UK High Court ruled that the government had somehow erred in putting a private copying right into law because the government didn’t believe the fanciful made up “losses” of the recording industry. However, it still left open the possibility that the law could be left in place if the government could come up with a good enough reason to keep the law in place. But, on Friday, it stomped out that hope, issuing a final ruling that makes it clear that the 3 UK citizens who still buy CDs cannot rip them into MP3s because the recording industry will die, or something along those lines.

As for why? Well, it appears that the UK government itself sided with the record labels and said “sure, get rid of the law that Parliament passed.”

The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:

?The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.

Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge?s conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of ?harm? (the issue identified by the Judge is a matter for a potential reference)?.

There is a separate question of whether all those CDs that were ripped in the past few months created newly infringing files or if those somehow get grandfathered in. Here, the court has decided that… it won’t bother answering that question and will punt and leave it for a future lawsuit to decide. Really. It goes on for a few pages weighing the two arguments and then says “meh, I’ll let someone else decide”:

I am not prepared to rule upon the position ex tunc. It seems to me that the declaration sought raises potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both.

One hopes that the record labels aren’t so stupid as to actually go after someone for this, but this is the record labels we’re talking about and “suing fans” is about the only thing they know how to do these days.

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Comments on “UK High Court Goes Even Further In Emphasizing That You Cannot Rip Your Own CDs”

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That One Guy (profile) says:

If you don't own it, why buy it?

If someone doesn’t own the CD or it’s content, as is clearly the case here, then they’d be a fool to ‘buy’ it.

If those buying music had any self-respect, then a decision like this would cause them to stop buying CD’s entirely, instead spending money on stuff they actually own and can do what they want with. Sadly I’m sure the vast majority will continue to throw money at those with such overwhelming contempt for them, being too stupid to do anything else.

On the plus side, this ruling is effectively impossible to enforce, and if they try it the PR backlash would be quite the sight to see, so as idiotic as the ruling is, it’s also pretty much meaningless for it’s own sake.

I suspect that those who were pushing for it know this however, and this is merely laying the groundwork for something worse down the line. I could totally see them a few years down the road arguing that because people are ignoring the law that they need a new one that would guarantee them money for all those ‘lost (second, redundant) sales’, from one source or another.

Richard (profile) says:

Re: Re: Re:

Now you can’t rip them

That never stopped anyone before 2014 when it was still “illegal” so why should this ruling change anything?

By definition private copying of the sort that was made legal is effectively undetectable.

The really disturbing thing about this is that the government hasn’t appealed it – when they appeal every case when they are opposing the public – eg this one about the snooper’s charter.

The UK public ought to wake up to how stupid it was to kick out the LIb Dems and give the Tories a free rein.

The position on both these cases would be reversed otherwise.

tqk (profile) says:

Re: Re: Re: Re:

Good old vinyl far surpasses CD.

You’re trying to start a flame war, right?

Vinyl and old style tape (not DAT) are analog, which captures the entire frequency spectrum of the performance (assuming perfect recording hardware). Audiophile zealots insist that they can actually hear the long tail, low amplitude components in analog recordings, despite scientific proof that they’re well outside the range of human hearing.

I suspect they envy canines.

Uriel-238 (profile) says:

Re: Re: Vinyl has a nostalgic and cultural niche.

And some music responds well to the idiosyncrasies of LP and 45s.

When it comes to the purest experience, I recommend live instruments, and even today we’re taking steps to fabricate the live experiences through artifice.

But redbook (CD) is significantly higher resolution than vinyl, so a much better recording can be stored and distributed.

Modern mp3s are even higher resolution than that, which is part of the cause for fading interest in discs (also that plastic optical discs have a shelf life of about ten years).

As a young adult during the CD boom, I’ve paid the labels plenty, often getting fourteen bad songs bundled with the one song I wanted. I’m sure I’ve paid them enough.

I consider all my disc purchases licenses to re-obtain the music digitally. And I do.

John Fenderson (profile) says:

Re: Re: Re: Vinyl has a nostalgic and cultural niche.

“But redbook (CD) is significantly higher resolution than vinyl”

This makes no sense. “Resolution” is a term that only applies to things that are sampled. Analog recording equipment does not do sampling, so the term is meaningless in that context.

Or, if you want to look at it another way, the “resolution” of analog recording is infinity and will always exceed the resolution of any digitized format.

Anonymous Coward says:

Re: Rip off

“Yes, I still buy CDs and will continue ripping them as I did before it was legal and while it was temporarily legal. The only change is that I will have slightly more contempt for my country’s laws.”

Why bother to buy the CD’s? If it’s going to be illegal either way, why not just download?

Anonymous Coward says:

Re: Re: Rip off

TLDR; I’ll buy media twice, IF I see value in it. I don’t see value in repeatedly paying 15.99 for the EXACT SAME data I already have, only in a different container.

ALSO, I’m strictly talking about ripping from media you bought and own.

I would normally say to pay the artists for their hard work, but… the artists themselves explicitly (or implicitly) favor this system (especially older ones).

So at this point i’d say… Just stop using/listening to their music.

Yes it sometimes has immense cultural values and yes, it may have inspired generations.
But as of this ruling they may very well rule that those too are “derived” material subject to “copyright infringement”.

Bleh… it leaves a bitter taste in my mouth.

And it’s not as if I haven’t bought the same game/music CD/movie twice (mostly b/c higher fidelity).
But I want to do it of my own accord and because I see value in doing so, not because some **AA or another is forcing me to do so.

DMCA aside, if I own a player capable of reading data from its original format and can store it for later use, don’t be a dick and try to regulate me with “but it doesn’t have OUR seal on the cover”.
You got your money once.

That One Guy (profile) says:

Re: "If I'm going to be breaking the law either way..."

Highlighting one of the biggest reasons such laws/rulings are so incredibly stupid, right along with the fact that such idiotic laws do nothing but degrade any respect people might have for the law.

By making an action no-one in the public sees a problem with a crime, they also remove incentive for people to obey the law. If downloading a CD, and ripping one you bought are both illegal, why pay again?

Stephen says:

Re: Re: Regulations, not laws.

JoeCool wrote: “Government regulations ARE laws.”

No they are NOT!

Acts of the British Parliament are laws. Regulations are what is often called delegated legislation made by an executive official or body, not by a legislature. In some respects they are the equivalent of America’s executive orders. Nobody in the US would confuse an executive order with an Act of Congress.

nasch (profile) says:

Re: Re: Re: Regulations, not laws.

Nobody in the US would confuse an executive order with an Act of Congress.

No, but to say that executive orders are not laws is splitting hairs:

“Executive orders have the full force of law when they take authority from a legislative power which grants its power directly to the Executive by the Constitution, or are made pursuant to Acts of Congress that explicitly delegate to the President some degree of discretionary power (delegated legislation).”

Stephen says:

Re: Re: Re:2 Regulations, not laws.

…to say that executive orders are not laws is splitting hairs:

Not quite. An Act of Congress can override an executive order if the two are in conflict but an executive order cannot override an Act of Congress it is in conflict with.

nasch wrote: “‘Executive orders have the full force of law when they take authority from a legislative power which grants its power directly to the Executive by the Constitution…'”

Where was that quote taken from?

Art. 1 sec. 1. of the US Constitution vests federal legislative powers in Congress, not in the President. While you can argue the president has power to make rules and orders with respect to the EXECUTIVE powers vested in him by the US Constitution, those powers would mainly be concerned with the armed forces (through the commander-in-chief power) and way in which federal government officias–eg cabinet officers–fulfil their duties, and therefore would be concerned with federal employees and governmental positions, and as such their “force of law” would be limited (except maybe in wartime or times of martial law). Most non-C-in-C regulations would come from that other part of that quote you gave.

nasch wrote: “‘made pursuant to Acts of Congress that explicitly delegate to the President some degree of discretionary power (delegated legislation).'”

That quote is in essence what regulations (as distinct from LAWS) are in the UK: DELEGATED legislation.

UK regulations also effectively have the power of laws–in the sense that the courts can enforce and uphold them. However, they are also subject to a raft of limitations which Acts of Parliament are not. For example, a regulation (at least without explicit authority from an Act of Parliament) cannot sub-delegate. Meaning a government minister cannot give an underling the power to make regulations.

In addition regulations can also not be made retrospective or override what a law dictates. In contrast, laws–actual laws–in the UK can do both these things. (In the US the situation with retrospective laws is more complicated due to the US Constitution’s prohibition against ex post facto laws.)

nasch (profile) says:

Re: Re: Re:3 Regulations, not laws.

Not quite. An Act of Congress can override an executive order if the two are in conflict but an executive order cannot override an Act of Congress it is in conflict with.

That doesn’t mean it isn’t a law, it just means one is subordinate to the other.

Where was that quote taken from?

From the great all-knowing wikipedia, with a reference to this document:

those powers would mainly be concerned with the armed forces (through the commander-in-chief power) and way in which federal government officias–eg cabinet officers–fulfil their duties, and therefore would be concerned with federal employees and governmental positions, and as such their “force of law” would be limited

That’s not true. The Emancipation Proclamation, for example, was an executive order, and was directed at the citizenry rather than the executive branch. There are other examples of executive orders that affect more than just the executive branch in the WP article.

Stephen says:

Re: Regulations, not laws.

Just to add to that. Regulations are subsidiary legislation–as distinct from Acts of Parliament–which an Act of the British Parliament has delegated a power to a governmental minister or body to pass. As such they are subject to many limitations which Acts of the British Parliament are not; limitations which the courts are empowered to enforce.

Stephen says:

Re: Re: Re: Regulations, not laws.

If they’re enforceable with criminal penalties, they’re LAWS, no matter what semantics you try to employ.

Not really. in the UK an Act of Parliament can pretty much do ANYTHING, including amend or annul a regulation. In contrast a regulation which tried to amend an Act of Parliament (at least without explicit authority; when such authority is given the part of the Act which does so is termed a “Henry VIII clause”) would be invalid.

Basically regulations are SUBORDINATE legislation. They are LIKE laws in that they can have much the same effect but they are not-quite laws in that they hedged with more limitations than actual laws.

In particular, in the UK regulations can be invalidated by the courts if they breach those limitations. In contrast, in the UK Acts of Parliament are NEVER invalid, albeit the EU and its own laws have complicated their existence.

Anonymous Coward says:


The content industry has been helpfully convincing us that we own the medium (CD, DVD, etc.) but not the content.
When you buy, say, a CD, you are in effect paying for the manufacture and distribution and a license to enjoy the content.
Here’s the rub, though. You are buying an IMPLICIT license, since you do not sign any kind of formal licensing agreement, signifying your consent. This tacit acceptance on the buyers part does not specify any terms and conditions. There is therefore nothing stating things like the duration of or limits to this license.
When the content industry moves their content to a new media (say from LP to CD or from VHS to DVD to BlueRay) and customers buy a new copy of content they already own a license for, they are required to pay again for the same (implied) license they already paid for once.
Maybe there should be a requirement that the content industry needs to obtain a signed agreement upon sale of their wares, spelling out the terms and conditions of the paid-for license.
If you think it will be a hazzle buying, just imagine the outcry from the content industry…

Anonymous Coward says:

Re: re-re-licensing

“You are buying an IMPLICIT license”

Which is why I’ve been saying for a long time the solution is to only buy things with explicit, well advertised, non-all rights reserved licenses that you agree with and to educate everyone that not doing so potentially means you are buying it under an all rights reserved license and to educate people about what that means.

For instance say you agree with the existence of copy protection laws but you don’t agree with their current state. If you want to buy something you could choose to buy something released under a permissible CC like, non-extendible, license after ten years. If everyone agrees to vote with their wallets by only buying (or giving a very strong preference to) things that effectively enter the public domain (or get released under a better license) within a more reasonable period of time it will force companies to released content under a better license (or else get eaten up by competitors who will be willing to do so) effectively negating our overreaching copy protection laws.

(Of course this doesn’t mean we shouldn’t participate in the legal system. Many shills around here have made it clear they hate CC licenses, they hate Google and Megaupload, they hate anything that helps content creators distribute content without the distributors, they hate anything that lets you store data and they want to either ban or tax it and these shills would do anything they can to get politicians to pass more bad laws preventing competition altogether).

The problem is that everyone is too apathetic and lazy to fight these bad laws. In many cases everyone gets tired of fighting and fighting and fighting. They successfully fought to stop SOPA but IP extremists kept pushing and pushing to have more undemocratic laws passed through secrecy until they eventually get them passed. and once they are passed they are very difficult to ever remove. and the shills will just keep on pushing for more and more laws in a never ending push that only goes in one direction with absolutely no regard for the public interest. But we, the people, are to blame for these bad laws that no one except a very tiny tiny minority wants. It’s the same lack of effort that prevents us from cooperatively boycotting ‘all rights reserved’ content that prevents us from effectively working together to fix the laws. It’s our fault, we the people are to blame. and we need to stop doing nothing and start acting to fix things. As the famous saying goes “The Only Thing Necessary for the Triumph of Evil is that Good Men Do Nothing”.

All kinds of people do and will always exist, from ‘normal’ people to sick malicious psychopaths to mentally disabled people to murderers and thieves. While there maybe little we can do to stop the fact that ‘bad’ people will always exist it is up to ‘civilized’ society to ensure that murders and thieves don’t freely roam the streets, that the lunatics aren’t running the asylum, and that demented psychopaths aren’t running our government. It is our responsibility to keep their never ending existence under control. and when we fail that responsibility because it’s too much work it is no one’s fault but our own. We need to stop doing nothing, stop blaming government and the RIAA/MPAA, etc… for their nefarious behavior and we need to start blaming ourselves for allowing them to get away with it. The shills here on Techdirt are demented. There is nothing we can do about that. But what we can do, what we have failed to do (and it is our faults) is we can keep them under enough control to prevent them from ruining society for everyone just to satisfy their own selfishness.

BernardoVerda says:

Re: re-re-licensing

So of course, when there’s a change of standard format (such as, say, from vinyl to tape, or tape to CD) or even when your original purchase becomes a “worn” LP or cassette in need of replacement with a fresh, clean media — the distributors are perfectly happy to exchange your old copies for new copies, for the cost of the media itself, and perhaps a small handling/service fee… Right?

What!? No, they aren’t amenable to simply replacing the media, itself, for a suitable service charge?

Gosh! Why not? Isn’t that kind of… you know… inconsistent? I mean… in that case… the public might naturally conclude that, you know… the music industry has been lying to them, all along! (Then what???)

StripeyMiata (profile) says:

I think the UK Goverment played the record companies

It seems to me the long game for taking the case to court was to get a levy on blank media. Although saying “Meh” looks bad at first, in the long run the record companies aren’t going to be as stupid as suing someone for ripping their CD’s so have wasted loads of money on a court case.

DocGerbil100 (profile) says:

Interesting. Enlightening.

For anyone confused, this article is related to the previous ruling, on whether the government had basically done all its legally-required paperwork before changing the law. The government hadn’t, so the judge invalidated those changes, as the law requires.

At this point, it’s safe to assume that the right to private copying was deliberately implemented in a way that breaks other law precisely so that the labels could shoot it down in court.

The promised right can now safely be forgotten as the meaningless pre-election public relations nonsense it always was.

When the right to private copying was originally announced, I wondered why the government were suddenly so intent on fighting a recording industry that gives them so much money, especially on something so trivial. Most out of character, I thought.

Well, now we know: the entire law change and subsequent debate was meaningless – if immensely expensive – PR fluff, fully intended to ultimately fail, but in the meantime convince the more gullible voters that the Conservatives and Lib-Dems are our friends.

If you voted for either party, you have now reaped exactly what you deserve. If only the rest of us didn’t have to pay such a steep price as well, this would almost be a victory. :/

gaeliclad (profile) says:

The goverment could have said ok,
we,ll give the record company 1 penny from the vat collected on cds,
or they dont care.
The uk needs a revamp of laws re digtal media ,and
a fair use law to allow people to sample content ,
for parody,commentary, and education .
like in the us.
Also the uk has crazy laws on defamation.
hence the lack of big startups in the uk ,
people have phones ,tablets,ipods,
its simple ,
people who pay money ,
buy cds should be able to rip music for their own personal use to a phone or mp3 player.
when everyone does something the law is an ass,
it should not be illegal.
it brings the law into disrepute .
IS RECORD companys really gonna start sueing people for ripping cds,
i doubt that they are that stupid.

DB (profile) says:

Law or regularion, only the headline matters

The media companies got what they wanted — news stories that it’s not legal to do anything but directly listen to your CDs.

At some point they’ll push too far. If they convince people that almost everything is illegal, then getting unlicensed music by copying from a friend or downloading ethically feel pretty much the same as buying a CD and copying it to your device.

Anonymous Coward says:

As someone who lives in the UK, I think more people need to be aware of Jury Nullification.

For those of you who don’t know what it is, if you’re ever on a trial for a victimless crime (for example, this) and the evidence clearly indicates that the person is guilty of a “crime,” but you find the law unjust or wrongly applied, you can disagree with it when making your vote.

This is because you cannot be punished for the vote you make as a juror. This is why the entire concept of jury nullification exists to begin with.

Juries have more power than Judges, Magistrates and the prosecution would like them to know about.

tqk (profile) says:

Re: Jury nullification.

Juries have more power than Judges, Magistrates and the prosecution would like them to know about.

In a just world, we could sue Disney for stuffing kids’ minds with pap like this (Jiminy Cricket: “When you wish upon a star, …”). Did you know Walt was a Nazi sympathizer?

i) Anyone even admitting they know about JN will be bounced from the case ASAP, if they’re not charged with contempt instead.
ii) The best you could hope for would be a hung jury, giving the prosecution a do-over with a new jury.
iii) If you manage to avoid those, another jury member will rat you out (“We can’t work with him!”) and they’ll replace you with one of the two alternate jury members.

You should read those stories about judge Kozinski’s paper on The “game” is hopelessly rigged in favour of the prosecution.

Uriel-238 (profile) says:

Re: Re: Re:2 Languishing in jail.

They can probably just have the bailiff gun down a disfavorable juror where he or she stands if they want to be a jerk about it. A bit dramatic and a mess for maintenence, though.

Unless you are saying that judges will typically hold you for contempt if you try to nullify the jury or tell jurors about jury nullification. If that is now routine, it’s news to me.

The US Courts and Department of Justice have already demonstrated (and all but admitted) their authority does not stem from an adherence to a code of honor or the confidence of the people (It has neither.) but because they have the power of force and the threat of violent recourse on their side.

Therefore, those who participate with the courts can be expected to do so only to the degree that they are deliberately pressured, and not due to any sense of civic duty. And monkey-wrenching the system when possible as an act of defiance against this state of extortion is righteous to the people.

nasch (profile) says:


Maybe it’s just me, but I found this very confusing:

Last month, we wrote about an initial decision by the UK High Court to take away the private copying right that allowed people to rip their own CDs. This change in law had been sought by the public for so long…

At first I assumed “this change in law” referred to the decision by the court to take away the private copying right (since that’s what the previous sentence described). That made the rest of the article make no sense, and I couldn’t understand it until I realized “this change” referred to the original decision to add the private copying right. IMO some rewording is in order.

Rick says:

Hello Nero

In light of the effects on intellectual property laws and enforcement techniques in the impending Trans Pacific Partnership and its little brother, The Transatlantic Trade and Investment Partnership, discussing copyright restrictions under current law is a little like discussing fiddle tunes in Ancient Rome while smelling smoke.

DerekCurrie (profile) says:

Adulterated, Rotting Corporatocracy

This bad attitude and outright ABUSE toward customers is the ‘Spirit Of The Age’ in business these days. Idiotic, self-destructive companies have been destroying their reputations with their customers to the maximum degree possible, with more on the way.

Here are some of the horrors they have attempted to pull on us by way of lobbying, aka OWNING, world governments:

Fast Track treaty approval

ALL of the above are unconstitutional to some degree or another in the USA. But that has not stopped them from relentlessly being pushed by the Corporatocracy and their elected official minions. Every democracy in the world is under attack from lousy, hateful biznizz bozoids, the worst possible people to lead anyone, including their own biznizziz. (I am being deliberately sarcastic by way of spelling).

Business is a collaboration between companies and their customers. As soon as the customer is abused, its no longer capitalism. It’s plain old PARASITISM. Let’s keep track of the terminology of this sick situation.

Anonymous Coward says:

After losing 3/4 of my cd and cassette albums (it was around 2003, both of my cars from that era had a cd player and a tape player) from some piece of trash breaking in my car just next to my practice space with my band….I’ll say fuck you for any british who had something like that happen and now turns into flac archives all of the cd’s and LP’s he or she buys.

And fuck the tone of the article. Sure i’m an enormous file copier (downloading is not thieving), but I still enjoy having the real thing, many of us do.

At least people who still listen to real music and not shit-in-your-ears that is dubstep, gangsta rap and dance music.

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