Last month, Kevin addressed the question of whether simultaneous downloading is theft. His answer:
Probably not because they've been focused on the uploaders, but they might come after you if you make your iTunes catalog available via limewire, however, I haven't seen them go after someone for less than 8 available uploads.
As I mentioned on comments there, I think the more important is not whether they would go after you, but whether they can. It goes to the underlying question: If I purchase a CD, what am I actually getting?
Is my license tied to the particular media? Well, no, since ripping your CDs to listen on an MP3 player would likely fall under the Fair Use exception. Is there a difference if, instead of ripping my own CD, I download it as suggested above? Does it matter that it technicaly came from a different source, or should we only consider whether it's the same work? What about two live versions of the same copyrighted song? (Assuming each performance was not also protected by copyright).
What about the right to perform the sound recording publicly? If I buy a CD, can I play it for at my party? (See For Your Ears Only, linking to a not-so-far-fetched parody).
The non-commercial nature would probably be a big consideration here. By playing the music for others in my car, I'm probably not affecting the commercial market in a negative way; in fact, it might be argued that I'm actually helping the market, since it might encourage my friend to go out and buy the CD himself. Look how much money the record companies spend trying to get songs on the radio.
Maybe we should also consider how music is consumed in comparison to other copyrighted works. Consider how many times you've listened to your favorite album vs. how many times you've watched your favorite movie or read your favorite book - it's probably an order of magnitude different.
Would the scenario above change if I asked my guests to bring a bottle of wine and kept any leftovers? (This is certainly a consideration in determining Social Host Liability - does it change the non-commercial nature here?). What if I asked them all to chip in to cover the costs of the party?
The question of whether the person uploading the mp3 file is infringing is even murkier. It's harder to make the case that making a copy falls under Fair Use; that is, after all, perhaps the single most important right that copyright protects. But what changes when the person I'm reproducing it for already has a license?
Perhaps computer software illustrates this point better. Let's imagine we both purchased Microsoft Office and we each have our own product keys. You manage to lose your CD. Am I allowed to give you a copy of my CD, if you would be installing it with your product key?
Any thoughts or comments?