There’s been a bit of a kerfuffle lately regarding some statements made by the record industry in a brief filed in their case against Jeffrey Howell. The plaintiffs in that case said that “[o]nce Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.” Marc Fisher at the Washington Post interpreted that statement to mean that the industry believes that the act of converting your own CDs to MP3s is an unauthorized use. Others, notably Mike Masnick (notable given his continuing battle against old business models, which inherently includes a lot of criticism of the RIAA), argued that Fisher got it wrong, and what the industry really meant was that placing the MP3s in a shared folder accessible to the world was an unauthorized act. To wit, rip all you want, just don’t share.
Fisher refused to back down. The RIAA refused to clarify its position. Yesterday, Fisher and RIAA President Cary Sherman appeared together on NPR to discuss the issue. As one would expect in any battle of wits between a lobbyist and a print reporter, Sherman had a decided advantage. CNET’s Greg Sandoval, himself a former Post reporter, says that the RIAA shredded the Washington Post story in the on-air debate:
But as numerous bloggers and copyright experts have noted, the quotes cited by Fisher are incomplete. Fisher wrote that the RIAA had argued in the brief that MP3 files created from legally bought CDs are “unauthorized copies” and violate the law.
“The Post picked up one sentence in a 21-page brief and then picked the part of the sentence about ripping CDs onto the computer,” Sherman said during the radio show. “(The Post) simply ignored the part of the sentence about putting them into a shared folder.”
The “shared folder” omission is at the center of what’s wrong with Fisher’s story. Anyone who reads the brief can see that the RIAA says over and over again what it considers to be illegal activity: the distribution of music files via peer-to-peer networks.
Sandoval says that Sherman missed a golden opportunity to clarify the RIAA’s position. In his follow-up post, Masnick agrees with Sandoval. And indeed, when asked directly whether it is legal for an individual to make MP3 copies of his or her own CDs, Sherman refused to answer the question, arguing that copyright law is too complex for such a simple statement. Sherman went on to claim that the RIAA’s record is clear — “Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use) … Not a single claim has ever been made.”
So what’s the truth? As usual, it’s somewhere in the middle. Fisher is almost certainly wrong about the Howell brief, which was inelegantly worded, to say the least. That case follows the RIAA’s pattern – Howell shared some songs, so the record labels sued him. Rather than prove that anybody actually downloaded the songs, they rely on proof that he put them in his shared folder. Whether ripping the songs to MP3 was legal is essentially irrelevant, given that sharing the material via Kazaa certainly isn’t. But as usual, the RIAA is being disingenuous, and Sandoval and Masnick have gone too far in claiming the record industry believes that converting your own CDs to MP3 is a legal use.
So what does the RIAA actually believe? Go to their site, and you can get the industry’s take on The Law. Included there is a list of ways you can break the law, with horrendous consequences (Do the Crime, Do the Time…). The list includes this nugget:
You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it.
That’s entirely consistent with the Sandoval/Masnick view of the Howell brief – it’s the file sharing that’s the problem, not the ripping. But note what the RIAA also says – it was OK to make the MP3 because the CD you bought expressly authorizes you to do so. That is, you don’t have a legal right to make the MP3; the industry granted you a right via the terms of the CD license (remember that in the industry’s view, you don’t own the song, you own a license to play the song). What the RIAA grants, it can take away.
Later on that page, the RIAA says that you do have a legal right to “copy music onto an analog cassette, but not for commercial purposes.” They don’t say that this legal right comes from the Audio Home Recording Act, enacted in 1992 as a means to permit electronics manufacturers to produce digital recording devices without fear of RIAA lawsuits. The RIAA also says that you have a legal right to “copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.” That’s also a right granted by the AHRA.
So what about MP3s or songs burned onto discs that you haven’t paid the RIAA extra for?
Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
- The copy is made from an authorized original CD that you legitimately own
- The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
Ah, so the RIAA position becomes clearer. You don’t in fact have a right to transfer your own CDs onto your iPod. Rather, this particular unauthorized use “won’t usually raise concerns.” This is absolutely consistent with the industry’s longstanding view that making recordings at home is illegal but unenforced. If the RIAA believed that home copying was legal, we wouldn’t need the AHRA. We wouldn’t have had lawsuits against Sony for the DAT and Minidisc or against Diamond for the MP3 player.
What the record industry really wants is for you to pay again for every copy of a song in a new medium. Pay for the CD, pay again for the download, pay again for the ringtone, pay for using Pandora, pay for using XM. They were able to extract this concession from Sony in 1992, but customers have gotten around paying twice by using data CDs instead of more expensive (but identical) audio CD-Rs. They were able to extract a concession from Microsoft with the Zune, but Apple has refused to pay a tribute to our RIAA masters. They’ve tried to get mandatory royalties from Congress, but have thus far been unsuccessful. What they haven’t done is sue individuals for making personal copies not expressly authorized by the AHRA. Yet. Sony’s Jennifer Pariser let the industry’s real position out of the bag when she testified that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Sherman now says that Pariser misspoke because she misunderstood the question, but the question really wasn’t hard to understand – any lawyer worth the parchment her diploma is printed on should have understood it. Certainly she misspoke, but not because she misunderstood – she misspoke because that particular view is not yet ripe for public discussion.
The bottom line really is simple. The RIAA does not believe you have a legal right to transfer songs to your MP3 player. You only have that right for media that the RIAA gets its racketeering cut from. But the RIAA recognizes (a) that suing individuals for making personal copies would be a public relations disaster, and (b) any such claims would likely result in legislation making such copying explicitly legal, which would take away a justification for mandatory royalties from electronics manufacturers. All they really want is to get paid over and over again. How they get there is immaterial.
Short Nerd Chief 