To Burn, Or Not to Burn? It's More Than Just an Ethical Question

By James Frankel


One day in my 6th Grade General Music Class, I was teaching about the influence of Duke Ellington on jazz.  I wanted to play an example of his music for the students.  When I went to my CD rack, I found that while I had the Best of Duke Ellington CD case, the CD itself was missing.  Sound familiar?  In true improvisatory style I found another recording on a History of Jazz Box Set, and the lesson went on.  The next day, one of my students handed me a CD with many of Duke EllingtonÕs greatest compositions that he had burned at home. He told me that if that happened again I could use his CD.  This made me thinkÉcould I?

Let me start off by stating that I am firmly against ripping and burning music from the Internet without paying for it. While many people I know do it all the time, I just canÕt bring myself to steal music, especially from musicians that I admire.  They rationalize it in many ways: everyone else is doing it; I'll never get caught; those record companies make so much money as it is, and so on.  The bottom line is that it is illegal to download music from the Internet and burn it on to a CD without paying for it.  It is a violation of the 1976 US Copyright Law.  This article attempts to answer what is actually legal to burn, what is not, and why it is important for music educators to be concerned about the issue.


What exactly are we talking about?


            By now you probably know that anyone who wants to can subscribe to a file sharing service and basically trade any type of file that they want, including pictures, audio files, full-length feature films, and software.  The most famous of all of these services was Napster, which was shut down in a high profile court case a few years ago.  What Napster did was allow members to have access to each otherÕs files, a technology commonly called Peer-to-Peer (p2p) file sharing.  All that the member had to do was download the software application to their computer and then begin looking for files that they wanted.  For example, if someone wanted a specific song by their favorite artist, they could simply type the title of the song into the Napster search engine, and instantly they would be provided with literally hundreds of files that contained the full high-quality CD recordings of that title most often in the mp3 format.  The next step was simply to press Ņdownload fileÓ, and within minutes (seconds with a cable or DSL modem) the song would be on the memberÕs computer.  They could then use a software title like Toast or iTunes and burn the song onto their own CD that could then be played in most compact disc players.  Many of my students, and friends for that matter, make compilation CDs using the same method.  Creating compilations for a long car ride, a bad day, for psyching oneself up, or even for a breakup are as easy as a few mouse clicks. And now with the advent of DVD burners as common equipment on a computer, members can download full-length feature films that are still in theatres and then watch them on DVD players

Today there are many similar file-sharing services like Kazaa, LimeWire, and Grokster that do exactly what Napster did.  In fact, there are currently over 60 million subscribers to these services all of whom are illegally uploading and downloading music on the Internet.  The Recording Industry and many other musicians and effected parties are desperately trying to shut these services down.  The reason that it is so difficult is that the files themselves are not stored in one location that could be easily shut off.  They are stored equally on every memberÕs computer.  It is extremely difficult to trace, enforce and stop. 

The Record Industry is trying, quite feebly, to combat the problem with Internet services where the user pays a fee to download the songs that they like, but the bottom line is that most users do not pay for things that they can easily get for free somewhere else.  Not surprisingly, CD sales have declined since the beginning of peer-to-peer file sharing.  While many argue that the record industry is this mythical greedy beast that deserves everything that they are getting, it is not the point.  US Copyright Law clearly states that the practice of peer-to-peer file sharing is illegal, case closed.


What is legal?


            It is legal to copy songs from existing CDs that you have purchased for your own use and burn them on to a compilation disc.  Using a program like iTunes, it is very easy to copy songs from a store-bought CD onto your hard disk and then burn them onto a readable/writable CD (CD-RW).  It is legal to then use those compilation CDs in a classroom.  For example, one could make a CD recording of different styles of jazz from their own personal library, and then use that recording as part of a PowerPoint presentation, or any other type of aural presentation.  It is also legal to download songs from a website that clearly states that either a) you can download the songs for free and use them in any way that you like aside from selling them commercially, or b) you can download songs after paying a fee to the website.  You are then entitled to copy the song for your own personal use, or for use in a classroom, but you may not make multiple copies of the recording and distribute them.  This also applies to MIDI files that are copyrighted (many are).


What is illegal?


            It is illegal to download songs from the Internet using any type of peer-to-peer file sharing service and then burn them on to a CD, unless it is a pay service (almost all are free).  It is illegal to upload songs to the Internet to a file sharing service.  It is illegal to copy songs from CDs that you already own and give them to another person for their use.  This is similar to the copyright protection on sheet music where it is illegal to make multiple copies of one piece of music in an attempt to spend less on the music.  While many teachers engage in this behavior, few, if any, are caught and prosecuted. It is nearly impossible to trace a teacher who copies music.  But when a student asks the question ŅHey teacher, can you copy this?  It says right here itÕs against the law.Ó What do you say?  Similarly, it is illegal to download music from the Internet and burn it on to a CD for even personal use.  However, in this case, it is very easy to trace the behavior.  In a ruling in the Record Industry Association of America v. Verizon Internet Services case, the courts ruled that it is legal for entertainment companies to obtain an individual consumers name, address, and phone number if they have evidence that they are engaging in illegal peer-to-peer file sharing.

            If that doesnÕt scare you, maybe this will.  There are serious consequences to illegally downloading music from the Internet.  Criminal penalties for first-time offenders can be as high five years in prison and $250,000 in fines.  Further, civil action may also be pursued with a minimum penalty of $750 per downloaded song. 


What about recording a performance?


            Many music teachers make recordings of their groupÕs performances and sell them to students as a fund-raiser.  STOP.  This is a clear violation of US Copyright Law as well.  While seemingly very innocent, buying the music entitles you to perform it, not record it.  Technically, you must request permission from the music publisher to even make a recording.  You can then legally archive the performance on a CD for the school.  You can also use this recording in an educational setting (have your students critique the performance).  In order to make multiple recordings and sell them, you must pay the music publisher royalties of 7.1 cents per musical work or 1.35 cents per minute, whichever cost is greater, per CD sold.  A word to the wise Š itÕs better to be safe than sorry.


What Can You Do?


            Obviously, no one teacher can make a big difference in the peer-to-peer file-sharing problem, but they can start to try.  First, do not use illegal recordings in class..  It is setting a very bad example for students.  We would never think of committing a crime in front of our students, so donÕt. 

            Next, discuss the issue with your students.  We are musicians first.  Convey the message to the students that peer-to-peer file sharing hurts the musicians and composers who we so admire.  Every song downloaded is a direct hit to those musicians.  In a time when live music is quickly becoming a more and more difficult way to make a living, encourage students to support those musicians they admire by buying their music legally.  Ask the students what kind of support are they showing by stealing their music.  Discuss the idea of a copyright, the rights it gives the copyright holder, and the very real penalties for breaking copyright law.

            Finally, make an effort to keep illegally downloaded music files out of your school.  My school does not allow any electronic devices in school, effectively banning mp3 players and downloaded music.  Get the administration involved to write a letter to parents discussing the issue, and making them aware of the facts and the consequences. 

            For more information read Copyright: The Complete Guide for Music Educators by Jay Althouse or log on to to find the facts and information on what you can do to help stop illegal file sharing.  As always, I welcome your thoughts, questions, and opinions on the matter.