One of the core problems here is that the term "fair use" is not black and white:
(i) The RIAA interprets fair use *not* to include any of the activities you have discussed, Onhwy61.
(ii) On the other hand, legal scholars seem to interpret most, or all, of the activities you mentioned as fair use.
The theft/loss thing is a red herring. I cannot fathom a judge that would say subsequent loss or theft of a CD that has been copied to render an otherwise legitimate copy not to constitute fair use.
The gray area here is copying with the intent of continuing to listen to the copy, and then reselling the original. It is the essence of infringement to copy an *original* and sell the *copy*. The difficulty in a digital age is that it is quite possible to make a copy that is an exact duplicate of the original (album art is a red herring too--that can be copied as well), so the practical distinction between the original and copy is nonexistent. Is there a legal distinction between the original and the copy? Yes, the first sale provisions of the copyright act make that clear. Should there be a distinction in an era where exact duplicates can exist? Probably not in my mind.
If you read the legal debate, the problem is that legal scholars seem to be flummoxed by the notion that a subsequent act could render a prior act not fair use--the typical interpretation of the law is that the act of copying is either fair use or it is not. What you do later should not change that analysis because its the act of copying itself that is legal or illegal.
However, the legal debate also ends up being very fact dependent. I can easily construct a case where a judge would--in all likelihood--find an instance of copying and reselling not be be fair use. If I buy a bunch of CDs, copy them, and resell the originals and there is a clear, documented intent on my part to buy them with the intent of copying them and reselling them, I would bet a judge would find that my acts of copying are not fair use. I can also construct a scenario that goes the other way--if I buy a bunch of CDs, copy them, and 10 years later give a couple away, I doubt very seriously that any judge would determine that my copies are not fair use.
Just because the actual terms of the copyright act haven't caught up with the digital age, however, does not mean that what you are doing is *right*. What is right and what is legal are entirely distinct. If there is no practical distinction between an act that is infringement (copying an original and selling the copy) and an act that may or may not be infringement (copying the original and selling the original), and we agree that infringement is bad, then it seems to me that the law misses but morality shouldn't.
(i) The RIAA interprets fair use *not* to include any of the activities you have discussed, Onhwy61.
(ii) On the other hand, legal scholars seem to interpret most, or all, of the activities you mentioned as fair use.
The theft/loss thing is a red herring. I cannot fathom a judge that would say subsequent loss or theft of a CD that has been copied to render an otherwise legitimate copy not to constitute fair use.
The gray area here is copying with the intent of continuing to listen to the copy, and then reselling the original. It is the essence of infringement to copy an *original* and sell the *copy*. The difficulty in a digital age is that it is quite possible to make a copy that is an exact duplicate of the original (album art is a red herring too--that can be copied as well), so the practical distinction between the original and copy is nonexistent. Is there a legal distinction between the original and the copy? Yes, the first sale provisions of the copyright act make that clear. Should there be a distinction in an era where exact duplicates can exist? Probably not in my mind.
If you read the legal debate, the problem is that legal scholars seem to be flummoxed by the notion that a subsequent act could render a prior act not fair use--the typical interpretation of the law is that the act of copying is either fair use or it is not. What you do later should not change that analysis because its the act of copying itself that is legal or illegal.
However, the legal debate also ends up being very fact dependent. I can easily construct a case where a judge would--in all likelihood--find an instance of copying and reselling not be be fair use. If I buy a bunch of CDs, copy them, and resell the originals and there is a clear, documented intent on my part to buy them with the intent of copying them and reselling them, I would bet a judge would find that my acts of copying are not fair use. I can also construct a scenario that goes the other way--if I buy a bunch of CDs, copy them, and 10 years later give a couple away, I doubt very seriously that any judge would determine that my copies are not fair use.
Just because the actual terms of the copyright act haven't caught up with the digital age, however, does not mean that what you are doing is *right*. What is right and what is legal are entirely distinct. If there is no practical distinction between an act that is infringement (copying an original and selling the copy) and an act that may or may not be infringement (copying the original and selling the original), and we agree that infringement is bad, then it seems to me that the law misses but morality shouldn't.