No, iTunes is not illegal under UK copyright law

Just yesterday I bought my first non-DRM'd songs (The Last Vegas, in keeping with my 'I only listen to things from Guitar Hero' theme).

My social media timeline has been inundated with reports that iTunes is now illegal in the UK. The origin of the story is an article in TorrentFreak, where the author contacted the UK IP Office to ask about a recent High Court decision that repealed legislation making it legal to format shift purchased media (you can read my reports on the court case here and here).

I have to start by saying that I am a fan of TorrentFreak, I have lost count of the times that they have broken important stories, and they remain an excellent source in the front lines of the copyright wars. However, this time I think that they have taken their interpretation a step too far in order to get a very quotable and clickable headline. While a large part of the report is accurate, I have to completely disagree with the assessment that iTunes itself is illegal. As with many things in life, context is very important.

Private copying was not allowed by UK copyright law until June last year, when the government passed a new regulation allowing the creation of copies for private and non-commercial use. Private copying covers all forms of format shifting, this meant that ripping CDs or creating a digital version of old tapes or vinyl records was not allowed under copyright law until then. The music industry sued the government to have the regulations declared illegal, and a judge in the High Court of Justice agreed with the claimants. While we are awaiting the final declaration, the government decided not to contest the initial decisions, so for all practical purposes private copying is illegal again.

So, if this is the case, is iTunes illegal in the UK? I strongly believe that this is not the case for various reasons. While it is true that many computer programmes have in-built functions that allow them to make private digital copies of physical media, that does not make them illegal per se. The legal principle in this respect was established in CBS Songs v Amstrad. In that 1988 case, the music industry sued the manufacturers of a tape recording equipment for authorisation of copyright infringement. Their argument was that because Amstrad’s devices allowed users to record music illegally, then they were authorising such copyright infringement, and would therefore be liable. The defendants pointed out that the device was capable of a variety of non-infrigning uses (an argument that had been also made in the famous US case of Sony v Universal). The House of Lords agreed. Lord Templeman stated:

“My Lords, twin-tape recorders, fast or slow, and single-tape recorders, in addition to their recording and playing functions, are capable of copying on to blank tape, directly or indirectly, records which are broadcast, records on discs and records on tape. Blank tapes are capable of being employed for recording or copying. Copying may be lawful or unlawful. Every tape recorder confers on the operator who acquires a blank tape the facility of copying; the double-speed twin-tape recorder provides a modern and efficient facility for continuous playing and continuous recording and for copying. No manufacturer and no machine confers on the purchaser authority to copy unlawfully. The purchaser or other operator of the recorder determines whether he shall copy and what he shall copy. By selling the recorder Amstrad may facilitate copying in breach of copyright but do not authorise it.”

A device may allow infringement, but it does not authorise it in the legal sense. Furthermore, to be liable for secondary infringement, the device must be “specifically designed or adapted for making copies” of a work (s.24 CDPA). iTunes is mostly a media player, and while it has a ripping function, it has considerable non-infrigning uses. Moreover, every media player in the market, and every operating system, has a function that makes it possible to make private copies of works. Even most LP turntables nowadays come with USB connectors.

Finally, there is a common sense argument to be had against TorrentFreak’s interpretation. iTunes was released in 2001, and private copying was illegal until 2014, not a single music producer dared to sue Apple for authorising copyright infringement in that time. Windows has allowed users to copy CDs for longer than that, and we have every media player in the market which makes it possible as well. None has been declared illegal, and not a single user has been taken to court for ripping a CD.

The reason why the music industry decided to attack the new private copying regulations is not to go after Apple or Microsoft. In my opinion, they want the government to pass a new private copying regulation that includes a small financial compensation in the sale of every device capable of making private copies, a system which already exists in continental Europe.

I understand the frustration that the BASCA case has brought, but we gain nothing from scaring people using outrageous headlines. Let us lobby for more rational copyright laws with facts on our side.

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