US Uproar as RIAA says that copying your own CDs is stealing – or does it …

February 2008

Record labels

Here at Music law Updates we had thought that it was generally accepted in the music industry that whilst making a copy of a CD for personal use (eg copying onto a cassette, another CD or onto a computer) is technically an infringement of copyright, it is one the record labels would never action. Think again! In the UK it is certainly illegal to make any copy – even a private copy – unless this is for the purpose of ‘time shifting’ a broadcast to view at a later date. But it has always been presumed it was accepted practice that private copies were ‘OK’. But think again – The Washington Post reported that the guardians of the record labels in the US (and morality it seems), the Recording Industry Association of America (RIAA), have said that copying your own CDs is “stealing” in a legal action in the federal courts, taking their argument against music sharing one step further: In legal documents filed in the copyright infringement case against Jeffrey Howell, a resident of Scottsdale, Arizona, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer, here 2000 tracks. The industry’s lawyer in the case, Ira Schwartz, argued in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings. It is important to differentiate this statement on private digital copying from the actual (and we presume subsequent) file sharing Mr Howell is alleged to have undertaken. The illegality of file sharing is illustrated by the RIAA’s recent successful case Jammie Thomas who was convicted and fined for illegal file sharing – passing on digital copying to others without permission. Thomas was ordered to pay $220,000 to the big record companies ($9,250 for each of 24 songs she was accused of sharing online). Here whilst the case revolves around sharing – the additional response was concerning copies made for personal use. Here the RIAA affirm in a supplemental brief answering questions posed by the judge, that the labels consider all copying illegal. Now. One response came fro the influential Motley Fool investment web site which warns investors to beware of ‘Sony, BMG, Warner Music Group, Vivendi Universal, and EMI.’ In an article entitled ‘We’re All Thieves to the RIAA,’ Motley Fool columnist Alyce Lomax commented that the RIAAs stance in Atlantic v. Howell was ‘a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value.’” BUT, the RIAA have now claimed their lawyer’s comments have been misunderstood and that they never said the defendant in the P2P case had acted illegally by making private copies, but that the illegal act was sharing those files via a P2P network. The Post initially argued that that wasn’t what the RIAA had said, but this week accepted there had been a misunderstanding, and the trade body had not been inconsistent in its copyright statements. The trade body responded thus: “We appreciate that the Washington Post cleared the record”. The RIAA were perhaps right to clear the matter up whatever had been said – in the digital age this provision in copyright law is looking more and more anachronistic, even more so against the backdrop of an industry slowly changing from one focused on DRM protected music sales to a new business model – Warners became the latest label to drop DRM for sales via Amazon and SonyBMG have also said they will drop DRM in certain formats. If the labels did assert a restriction on genuine private copying they would surely leave themselves open to ridicule and criticism – and as a consumer I would be starting to ask some questions in response: If my DRM protected music cannot be played on my various different players (car stereo, CD player, computer) am I being short changed – or even ripped off (excuse the pun) by the labels? I have paid for the music after all. What if the player that stores MP3 tracks breaks or the file(s) corrupt? Will the labels refund me for all the money I spent on buying DRM protected music or music in a particular format that I cannot now play or have lost? Should I now demand a right to make private copies – something the labels have resisted in the past saying it was unnecessary? It seems to be very necessary – and in the UK will now be debated – see below.

and for a well written ‘common sense’ comment on where the music and film industries get it ‘wrong’ see the article by Allen Harkleroad at (from )

Our Special Correspondent Marc Holmes adds:
In the recent RIAA sponsored Atlantic v Howell litigation we find the association’s lawyers attempting to prosecute would-be file sharers, before they have actually shared a single file, for the supposed offence of ‘making available’. Arguments in Howell turned on the following question: if you move your MP3s into a file sharing client’s ‘share folder’, as Howell did, and therefore effectively ‘offer the files for sharing’, do you actually do enough to commit an offence under US copyright law?

On the subject, the RIAA seems to be unable to get its story straight. In the celebrated JammieThomas case, its star witness, a top level Sony BMG executive, stated that in ‘making a copy of song for himself’ a person ‘steals the song’. Certainly, this would have come as news to the millions of worried iTunes users who, before uploading their CDs, checked the RIAA website to make sure what they were doing was legal. They would have been reassured by news that “…burning a copy of a CD onto a CDR, or transfer to a hard drive…won’t usually raise problems”. That is, apparently, unless in doing so the music finds its way into a ‘share’ folder.

So does the RIAA’s backing of the Howell litigation constitute an embarrassing volte face as commentators are claiming? Probably not, as moving files into a ‘share folder’ is not the same as simply ripping them onto a hard drive. Nevertheless, it does not make the RIAA’s case any less hopeless. Predictably, with the aid of a ‘groundbreaking’ brief filed by the Electronic Frontier Foundation – that effectively recited the law as it stood – Howell’s lawyers have persuaded the court to reconsider the argument that simply ‘making available’ could constitute an offence. As the EFF pointed out, the statute insists that such an offence would require actual ‘unauthorized dissemination’ of the works – something that apparently would require going further than just placing files within the ‘share folder’, and offering them for downloading. Confused? The distinction is not a simple one.

Despite the EFF’s certainty on the whole matter, the difference between making something available for the taking, and ‘actual dissemination’ is not that clear-cut. There is unquestionably room for the RIAA’s argument, even it is one has been proved unsatisfactory at first instance. The problem remains that a successful litigant would have to prove that a defendant’s intention was that others should help themselves to those files – not an easy task.

So, for the time being, there will be no offence of ‘attempted file sharing’. The difficulty remains in the intangible nature of digitised musical works that may only ever exist inside a computer or portable device. It is the transition from the ‘real world’ into the intangible world of the internet that the law continues to struggle to make, and with record companies left with little choice but to use ‘real world’ law to tackle problems peculiar to the internet, this kind of confused litigation will keep appearing until all possible avenues are exhausted. It is perhaps only at this point that a truly creative solution will appear.

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