Converting Obsolete Musical Media to Current Formats: A Copyright Infringement Defense Arising from the Right to Repair and Implied Warranty of Fitness
Volume 82, No. 1, Spring 2009
By Robert L. Masterson

The problem of unplayable recorded music has plagued consumers almost as long as there has been recorded music. Since the days of piano rolls, consumers have purchased media for reproducing music on a variety of players. The available formats for prerecorded music have changed over the decades. Wax cylinders gave way to acetate seventy-eight r.p.m. records, just as eight-track cassette tapes yielded to CDs. Consumers who purchased prerecorded music found, after most of these transitions, that the players for the previous generation of media began to disappear from the market. As a consequence, once a consumer’s old player failed, there would often be no way to appreciate the music stored on the older media.

This Comment proposes that conversion of the music stored on obsolete media to a new format is not only a viable technological solution to the problem, but that such conversion should be within the rights of consumers who own obsolete media. Persons who perform such conversion should have no liability for copyright infringement, because such conversion should be viewed as repair of their property.

Part II reviews the law concerning the rights of both sides of the music consumer’s original transaction: the owners of the copyrights in what is recorded on the media and the purchaser of the media containing the musical recording. Starting from the constitutional underpinnings of copyright law in Part II.A, Part II examines the statutory framework and common law that developed into copyright law in Part II.B. The section also examines contract law doctrine relevant to the consumer’s purchase. Part II.C examines case law that has interpreted and expanded various relevant legal doctrines, starting with time shifting and the fair use doctrine, then moving on to space shifting and noninfringing digital recording, before concluding by exploring the permissible repair doctrine from patent law.

Part III applies the relevant law to the problem of conversion of musical recordings from obsolete formats to current formats. Part III argues that the doctrines discussed in Part II give the consumer a defense to a copyright infringement action. Part IV concludes that this defense arises from the right of an owner to maintain a piece of property as fit for its intended purpose.

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