Can you record your iTunes-encrypted music into MP3 format to play on any music device of your choosing?

Yes.

May you do it?

That depends on who you listen to and how you do it.

Last week, I discussed HotRecorder For Media software, which streams the audio purchased from Apple's iTunes through your sound card and back onto your hard disk in MP3 format, thus allowing you to play it on any portable device -- iPod or non-iPod.

Apple doesn't want you to use competing players. So it protects its iTunes files with encryption.

According to the inventor of HotRecorder for Media, recording those files is perfectly legal as long as you use the file only for yourself. HotRecorder doesn't de-encrypt the file; it simply records it, as you would if you were using an analog tape recorder.

Lawyer David Gurwin, of Buchanon Ingersoll, disagrees. Mr. Gurwin, who works in the technology and media industries, said the law allows you to make copies for yourself but that your agreement with Apple doesn't allow it.

While reading Apple's iTunes user agreement, he stopped occasionally to interject how it affects the user who wants to record. In his opinion, Apple's terms stipulate how many devices you can use and requires that they be only Apple-authorized devices. That means iPod competitors are not allowed.

Even if Apple doesn't stipulate that you must use an iPod, its protection software specifically prohibits non-iPod devices. To live up to your agreement with Apple, you must not move files to an unauthorized device -- even if you are technically able to do it.

According to Mr. Gurwin, Section 1008 of the Copyright Act enacted in 1992 creates a fair use exception so you can copy your files from one format to another for your own use. But it doesn't stipulate that the supplier of music to you has to allow you to copy your files. They have the right to put in copy protection -- and that doesn't violate the law either.

However, the Digital Millennium Copyright Act says if a copy protection is in place, you may not tamper with the copy protection to accomplish what the copy protection is trying to keep you from doing. So you can't decrypt a file to copy it.

While the HotRecorder executive postulates that copying is not the same as decrypting, Mr. Gurwin said legally it is, because it specifically attempts to get around the copy protection to do something the copy protection is trying to prevent.

So copying the recording is not a violation of federal law, but violating your agreement is a breach of contract. In legal terms, it's a civil wrong, not a criminal act. But it could be costly, nevertheless. If found to be violating the copy protection (and therefore violating the Digital Millennium Copyright Act), you could face fines of up to $2,500 per device and up to $25 per recording. Plus, of course, the service can terminate its contract with you.

While Apple is not likely to sue a small time infringer, it has sued individuals. So you can never be sure. The record industry has been busy, in the guise of the Recording Industry Association of America, going after the big-time infringers.

Bottom line, according to Mr. Gurwin: Yes, it's your music because you bought it (or, if you use a subscription service instead of purchasing the songs, it's yours for the rental period).

But it's not your music to use as you see fit. There are strings attached.