A member of the ITForum mailing list asked about the legality of using Audacity to create MP3 files for an educational project, because patents on the MP3 technology are claimed by various different companies and organizations (e.g. Thompson, Fraunhofer IIS, Sisvel/Audio MPEG, Texas MP3 Technologies, and Alcatel-Lucent), and a number of prominent legal battles have arisen over the use of MP3. The impact of these legal battles can be seen in the development and focus on competing, proprietary audio file formats by both Windows (e.g. WMA) and Apple (e.g. AAC).
(For those of you who have been in a coma for the last 13 years, MP3 is the most popular digital audio file format. It uses a lossy encoding and compression technique to ensure small file size while preserving audio quality.)
A lot of the “MP3″ legal concern is over MP3 encoding or decoding technology, but the patents also affect the distribution of the .mp3 file itself. Emusic.com is just one of many who pay a patent royalty for the distribution of it’s MP3s. But what about educational institutions? For instance, MIT OCW uses MP3 technology for compression of audio lectures; do they pay off Thomson for each file?
Not likely. Thompson’s web site declares…
A license is needed for commercial (i.e., revenue-generating) use of mp3/mp3PRO in broadcast systems (terrestrial, satellite, cable and/or other distribution channels), streaming applications (via Internet, intranets and/or other networks), other content distribution systems (pay-audio or audio-on-demand applications and the like) or for use of mp3/mp3PRO on physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like).
However, no license is needed for private, non-commercial activities (e.g., home-entertainment, receiving broadcasts and creating a personal music library), not generating revenue or other consideration of any kind or for entities with associated annual gross revenue less than US$ 100 000.00.
This appears to exempt non-profit educational usage, so I e-mailed Thompson directly. Reeder Grant of Thompson replied swiftly and courteously:
If you are not receiving, or you do not anticipate receiving more than $100,000 annually from mp3 distribution activities, you do not need a license. From your described use below (distribution of non-profit educational MP3s), it would seem that you would fall into this latter category of not needing the license.
Good news, right? Based on this information I suggest the following options for educational creation and distribution of .mp3 (which in no way should be considered legal advice):
- Proceed. Create and distribute .mp3s without a license if they are clearly for non-profit educational purposes. But make sure you use a legally purchased and licensed, or, even better, an open source MP3 encoder like LAME (open source MP3 encoders have been specifically ignored by the legal actions). And consult a lawyer.
- Contact the patent holder(s). I would go with Thompson for the above-stated reasons. Then consult a lawyer.
- Break into the open. Use a different, widely supports audio compression format. OGG seems to be the most popular “open” lossy audio compression technology. OGG is not natively supported by iTunes or Windows Media Player (two of the most popular desktop media players), but plug-ins are available for both (make these available to users on the file download pages). No lawyer required.
Hardcore edupunk’s might lean toward option 3, but while nearly everyone is ready to play an MP3 in some form or another, few are ready to play an OGG, and less are comfortable with the change of file format.
(I will add that though I’ve never played with OGG, I am fascinated by the claim that OGG can “contain” lossless audio file information from other formats such as FLAC. FLAC is an open “lossless” audio compression codec, and I’ve always ripped my CDs as FLAC and MP3 simultaneously using EAC, Mareo, and LAME [FLAC for archive, MP3 for portability], but this FLAC + OGG marriage may be more suitable in the longterm.
(If you’re thinking of trying OGG, audiophiles recommend that you not “transcode”, that is, convert from MP3 –> OGG. Convert from CD, original WAV, or other “lossless” format.)
P.S. With respect to the original ITForum question, I should point out that Audacity is not a MP3 encoder as implied, nor does it contain an MP3 encoder, thus exempting it from the patent licensing bane. Audacity is an audio file editing software that uses it’s own file format. Audacity does, however, work with external MP3 encoding software (like LAME). Basically Audacity triggers the external encoder to compress the audio file.
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