RIAA Flubs Chance To Actually Respond To Questions About CD Ripping

from the nice-work,-guys dept

For years, we've been a fairly persistent critic of the RIAA's tactics. It's not, as some incorrectly suggest, because we are "anti-RIAA" or that we somehow dislike the RIAA. Not at all. We simply believe their policies are incredibly damaging. First, they're damaging to fans of music who are suddenly treated like criminals just for wanting to listen to music. Second, they're damaging to musicians, who are being lied to about what business models make sense in a digital world. Most importantly, they're damaging to the very labels that the RIAA represents -- and the fact that the RIAA's continued strategy has resulted in increasing troubles for the major labels it represents as well as major acts defecting left and right at a time when the rest of the industry is thriving, seems to bear that out. In fact, I always find it amusing that providing the RIAA with accurate and useful advice about why its strategy is damaging and even providing alternative strategies could possibly be seen as being "anti-RIAA." It's not. It's anti-"dumb policies" -- policies that hurt everyone, including the record labels. For years, we've been ridiculously optimistic that one day, maybe (just maybe!) the powers that be at the RIAA would wake up, realize what a huge mistake they've been making, and start focusing not on treating fans like criminals, not on sneaking around Washington DC to mislead politicians into passing unnecessary and dangerous laws, but on new business models that actually make everyone better off.

That's why it shouldn't be surprising (or "ironic") that we pointed out where the Washington Post and others were wrong in describing a particular lawsuit filed by a record label against Jeffrey Howell. It does no one any good to fight that battle until it's actually necessary. In fact, by saying the RIAA is saying something they have not, it only gives the RIAA more ammo to suggest that those of us who are legitimately critiquing their policies are simply "making stuff up."

So, while I disagree with folks saying that it's impossible to unfairly malign the RIAA, it is rather telling (as pointed out at that same link) to look at how the RIAA has responded to this debate. If they were smart and had any strategic PR sense at all (I know, I know, stop laughing...), someone at the RIAA should have come out quickly and made a clear statement saying: "Ripping CDs for personal use is, and always has been, perfectly legal. We will not, and have not, sued anyone who does that." It's an easy, proactive statement that the RIAA could make. It wouldn't be conceding anything, as it's a factual statement based on the law. Instead, the RIAA has remained mostly quiet or made more careful statements, rather than just coming out and saying: "Yes, you can rip your CDs for personal use." And, for that, the RIAA should absolutely be maligned -- not because of any hatred or anti-RIAA sentiment -- but because it's just dumb and self-defeating.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jan 4th, 2008 @ 6:10am

    Ummmm?

    You sound like the RIAA. You like the RIAA, but none of their policies. Please twist some words around for your readers. You don't like the RIAA so just admit it.

     

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      JS Beckerist (profile), Jan 4th, 2008 @ 9:18am

      Re: Ummmm?

      There's a difference between being against a philosophy and being against an organization. Better put, you're confusing 2 issues. There's a problem with the HOW, not with the WHY.

      I'm on the same page with Mike here.

       

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        Anonymous Coward, Jan 4th, 2008 @ 11:04am

        Re: Re: Ummmm?

        JS Beckerish,
        I think Jason put it best. I mean there is nothing being against the RIAA, but just say that you are. I mean Mike is trying to be unbiased, but he is not everyone knows he dislikes the RIAA.

         

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    Joe, Jan 4th, 2008 @ 6:21am

    Free Advice

    Excellent post.

    I don't think you're anti 'dumb policies' - you're pro consumer or pro market. I doubt you think you'll convince anyone at the RIAA that their policies are dumb; you know that free advice is worth what you pay for it.

    What you're bringing to the table is a reasonable argument about copyright that's better than "it's so easy to copy so I should just be able to take it" or "they play it on the radio for free so why can't I just take it" - and of course "they're just big companies."

    But in the end, your ideas are anti-RIAA because the RIAA is an organization chartered to protect the existing business model of record companies through political and legal means, and to maximize the effects of their effort through PR that spreads fear, uncertianty, and doubt.

    You may argue that their existance is or their tactics are paradoxical, but if the more the RIAA is successful with its political agenda, the more likely a victory is. So are you really 'pro political action to counteract the recording and film lobbies?' Then the best place to take the concepts mainstream is in the upcoming presidential election.

     

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    Stan Schroeder, Jan 4th, 2008 @ 6:21am

    Hey, that's what I said

    I'd like to emphasize that I didn't say that it's impossible to unfairly malign the RIAA. The gist of my article over at Mashable is basically what you've said in this last paragraph: RIAA is (probably on purpose) muddying the waters here, refusing to state clearly where they stand on this matter.

    I also agree with you that this battle - if I may call it so - is not about fighting the RIAA; it's about pointing out strategies alternative to theirs. I've been pushing several of my ideas with this regard over the years; one is the idea of "positive DRM", and the other is the notion of competing with piracy instead of fighting piracy. I'm treating the music industry as a patient that needs help; not an enemy that needs to be destroyed.

     

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    Anonymous Coward, Jan 4th, 2008 @ 6:21am

    It sounds more like they're not against the RIAA in principle (ie not against the idea of a body to represent the rights of copyright holders), but don't approve of the way that they currently go about doing things. Doesn't seem unreasonable to me; stop oversimplifying things just to suit your ridiculous black-and-white world view.

     

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    Anonymous Coward, Jan 4th, 2008 @ 6:26am

    If they were smart and had any strategic PR sense at all (I know, I know, stop laughing...), someone at the RIAA should have come out quickly and made a clear statement saying: "Ripping CDs for personal use is, and always has been, perfectly legal. We will not, and have not, sued anyone who does that."

    --

    That is the point though, they don't believe ripping CDs is legal for personal use. They stated so in court cases, and they've always made sure to leave that little bit out whenever precedent is made. The RIAA wants you to buy a CD, then buy the MP3, and then buy the ringtone. This way they get to charge you three times rather than just once. The RIAA doesn't understand the fact that you aren't wanting to pay for the same song three times, and as long as they misunderstand that fact and attempt to cash in on it, they're going to keep going down the tubes.

     

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    Anonymous Coward, Jan 4th, 2008 @ 6:57am

    He cannot say anything else...

    The RIAA is behind the attempts to put copy protection on CDs. Therefore, they themselves have made it "too complex" to give a straight answer, and they are currently reserving all legal rights they have to later destroy someone for ripping a "protected cd". All you'd have to do is hold down the shift key, and you are executing a Class C felony of circumventing DRM. And THAT is a criminal offense. The RIAA cannot possibly give a statement of "ya, thats ok to do" cause they dont have the right to do so. Even the lobbying firm that got a law instituted can give citizens the permission to break that law.

    The RIAA made many irrevocable mistakes in their futile attempt to sustain their current extremely profitable busines model.

    And I don't really blame them. If I had a business model that wonderfully profitable, I'd do nearly everything to keep it alive too.

     

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      Anonymous Coward, Jan 4th, 2008 @ 6:59am

      Re: He cannot say anything else...

      "Even the lobbying firm that got a law instituted can give citizens the permission to break that law."

      Supposed to be 'cannot', of course.

       

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  •  

    Call a spade a spade already

    If an institution is consistently dishonest and abusive at every single level, I feel that they are deserving of whatever contempt is thrown in their direction. There is little point in pretending that the RIAA is merely a misguided organization muddling through the best way it can. The RIAA deliberately relies on tactics that have more in common with mobster extortion and racketeering schemes than legitimate business practice. Their playbook makes deliberate use of extreme levels of personal abuse, intimidation, and dishonesty. They adopted these tactics by choice, and use them as a matter of personal preference. You it might as well say "I don't personally dislike the Mafia. I just disagree with their tactics."

     

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    Ben, Jan 4th, 2008 @ 7:41am

    it's because they /ARE/ saying that

    you're correct that what they said legally (the "shared" folder) is probably best interpreted to mean they aren't suing for plain old ripping, but i think the vagueness (in the brief and since this story has broken) is intentional. if the judge uses similar language in his opinion they have precedent to point to when they DO want to sue for ripping, and with this story out there i'm sure they're hoping for a chilling effect. they're working towards some record exec wet dream where they sell you one copy for your cd player, one for your ipod, one for your computer... of course, that's totally stupid and will never happen - but when has that ever stopped the RIAA?

     

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    Crazy Coyote, Jan 4th, 2008 @ 8:13am

    Let's see... Radio, TV and Vinyl onto 8 track onto cassette, VHS BETA max CD's DVD's Blu-Ray, HD, analog, digital. Format after format, media after media changes.
    If they are going to sue people why not start with the people who invented the transistor.
    From the words of John Wayne... Lower than a snakes belly in a wagon rut.
    Watch out folks Microsoft and the RIAA are now in your automobile.
    Is there a copyright on the proper use of toilet paper yet?

     

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    Shelley, Jan 4th, 2008 @ 8:17am

    Actually, they can't

    I think the RIAA made the point the only way the organization could.

    The RIAA can point to existing cases when making claims, and make assurances about what it will, or will not do based on certain circumstances.

    However, the RIAA cannot make the statement about what is or is not legal, because only the court systems can, and should, make statements about the legality of an action. The court systems can do so, only, based on an existing case and through court findings and judgments.

    Now, since it is very unlikely that the RIAA will ever take a person to court for having ripped their CDs to their computer for loading on to their iPod or other _personal_ use (ie not P2P shared use) this specific issue is unlikely to ever go in front a judge for their to be a definitive finding. And, no, Hotaling is not the same thing. Even William Patry doesn't say directly that copying for personal use is legal under copyright law. He gives it as his opinion that this is so.

    People do have choices. If they don't like the RIAA, the don't have to purchase music from companies represented by the RIAA. There are many musicians that release their works independently.

    As for the so-called 'intentionally' misleading text in the brief, you have to remember that there were several other filings in this case before the brief was published, that were being answered in that brief. The RIAA was responding based on previous filings and motions. Don't want to believe me? Get a PACER account, go see for yourselves.

     

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    Killer_Tofu (profile), Jan 4th, 2008 @ 8:42am

    RIAA & Protecting Business Models

    Just because this came up today.
    Here is a funny comic about the RIAA that is out today.
    http://www.geekculture.com/joyoftech/joyarchives/1053.html

    Also, here is an article about Edison and protecting his business model he had for Direct Current.
    http://www.wired.com/science/discoveries/news/2008/01/dayintech_0104

     

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    Jason, Jan 4th, 2008 @ 8:59am

    It's Okay to be Anti-RIAA

    It's okay to say that you're anti-RIAA. The first poster was correct; you are just twisting words around unnecessarily. You seem to not like the idea of being called anti-RIAA, when you obviously are. I understand the distinction you're trying to make between "being against the organization" and "being against their principles", but it's a pointless exercise in splitting hairs.

    If you're completely against everything the organization does, that is the definition of being anti-[that organization].

    So, because of their principles and their actions to-date, you are anti-RIAA. We recognize that could change, especially if the RIAA changes. You might even become pro-RIAA if they were doing the right things. For now, you're anti-RIAA. So am I. It's okay.

     

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      Mike (profile), Jan 4th, 2008 @ 12:01pm

      Re: It's Okay to be Anti-RIAA

      It's okay to say that you're anti-RIAA. The first poster was correct; you are just twisting words around unnecessarily. You seem to not like the idea of being called anti-RIAA, when you obviously are.

      Again, I'm confused as to how recommending a better course of action and better business models for the RIAA is "anti-RIAA."

      Please explain.

      If you're completely against everything the organization does, that is the definition of being anti-[that organization].

      I'm not against everything they do. I'm against the stupid things they do.

       

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        Anonymous Coward, Jan 4th, 2008 @ 12:30pm

        Re: Re: It's Okay to be Anti-RIAA

        So you are against what they do. Doesn't that make you anti-RIAA? Guess not, but common sense says otherwise.

         

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    Ramahan, Jan 4th, 2008 @ 10:21am

    Maybe you need to re-read what the RIAA said

    Maybe all of you defending the RIAA and vilifying the Post need to go back and actually read what the RIAA stated. Seems all the RIAA defenders are making the same assumption without looking at the context. ( remember what you were always told about assumptions)
    All the defenders are jumping to the fact the RIAA brief said "Once 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." but are ignoring what they left out. The RIAA did not say "and they are in his P2P shared folder" but "and they are in his shared folder" which makes a much broader assertion. Since we're talking literal Lawyers here making an assertion we should be safe to say that this statement was vetted by numerous folks who would have pointed out the lack of the precise wording on a legal document.
    If you honestly believe that the RIAA should be defended for their statement feel free to do so but first look at your operating system and ask yourself which folders are not "shared". Then ask yourself if a high priced legal firm with a full staff to review every document before release would have accidentally left out that reference to P2P in their statement.

     

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      Ray Beckerman, Jan 5th, 2008 @ 3:44pm

      Re: Maybe you need to re-read what the RIAA said

      Dear Ramahan

      I agree with you.

      And I have yet to see one person who is defending what the RIAA said and attacking Marc Fisher's absolutely correct reading of it, make reference to

      (a) the actual question the judge was asking about the presence of "unlawful" copies on the defendant's computer,

      (b) the context in which he was asking it, or

      (c) the complete answer the RIAA gave to the question.

      They keep citing other parts of the brief which have nothing to do with that particular question and the RIAA's answer to it.

      The actual question and answer are:

      Question:

      Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"

      Answer:

      It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. Once 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.

      It is absolutely bizarre in my opinion to focus on 8 words in the answer and ignore all the rest of it. That is totally irrational. Why on earth would they have written all of that if they didn't mean it?

      It is likewise bizarre to forget, as David Kravetz of Wired.com just reminded us today, that it was a major factor in the Jammie Thomas trial -- where the RIAA picked up its $220,000 jury verdict -- to make the point on direct examination that copying cd's onto one's hard drive is unlawful, and then to viciously crossexamine Jammie Thomas on the fact that she hadn't gotten permission from the record companies to rip her personal cd's onto her computer. Kravetz was at the trial all day every day, from gavel to gavel.

       

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        JohnnyL, Jan 5th, 2008 @ 7:46pm

        Re: Re: Maybe you need to re-read what the RIAA sa

        The RIAA is being very disengenous here. Fisher of the Post wrote that this statement in the brief means that the RIAA considers copying of CD's to a computer to be illegal:
        "Once 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"

        The RIAA stated that the above says no such thing and focuses on Fisher leaving out the words about the MP3's being placed in the shared folder. The RIAA is trying to win the argument by trying to say that this means its placing the MP3's in the shared folder that is illegal, but that is not the context of the statement in the brief. Since this case is about illegal distribution it is the plaintiffs contention that placing the MP3's in the shared folder facilitates illegal distribution.

        However, everyone leaping to the RIAA's defense here is missing a very vital point in the statement and that is what the RIAA considers an authorized copy. In the statement cited above, Sherman would like you to believe that they meant placing the MP3's into the shared folder made them unauthorized copies, but the brief clearly states that the once compressed and placed in the shared folder they were nolonger the AUTHORIZED COPIES DISTRIBUTED BY THE PLAINTIFF". The authorized copy is the CD. When you copy a CD to your computer, the RIAA for copyright purposes considers these to be unauthorized copies, no matter what folder they are in. It is illegal to make unauthorized copies of copyrighted work except in very specific situations. On the RIAA's own site they state that the only legal copies you can make are to cassettes or Audio CDR's on which a royalty fee has been paid. They do not recognize a "right" to copy CD's but copying for your own use will not generally get you in trouble as they haven't yet ever prosecuted anyone for copying CD's for their own use. They will not say its technically illegal as precedent has not yet been set in Federal court. Sherman of the RIAA refused to explicitly state that the RIAA considers copying CD's to a computer or other device for a consumers own use to be legal. If he won't say they consider it legal then that must mean they consider it illegal.

         

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    zcat, Jan 4th, 2008 @ 11:03am

    Is ripping actually legal? Are you a lawyer?

    For a start, many CD's are copy-protected. In America, if you hold down the shift key and prevent Sony's rootkit from being installed you have violated the DMCA. Or if you run Linux and it ignores Sony's rootkit I guess.

    Here in New Zealand there is a lot more 'doubt' that ripping your own CD's to MP3's is actually legal. Everybody does it, nobody has ever been sued for it AFAIK, but the Ministry of Economic Development tried to have our copyright law amended to clearly allow 'private copying for personal use' and the recording industry fought the change tooth and nail.

     

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    Melted Metal Web Radio, Jan 5th, 2008 @ 4:21pm

    A Broken Business Model With Large Profit Margins

    Even though I agree with this article, we all have to recognize something very, very, important. Anyone in a positive economic position in this particular society (in the United States) will, to some degree, protect their sources of revenues even if it is coming from an antiquated source.

    If I am a majority stock holder in an oil company that is making $500 million for me each year, why would I support green energy? The change-management to such business models would surely lose me hundreds of millions of dollars, and who is to say that my 'green' company would sail after the equity injection periods?

    This is the plight of humanity- fighting with wealthy people who are protecting huge revenue streams that flow from old business models. Record companies are not so much 'stupid', as they are fighting to preserve their 'CURRENT' revenue streams at the expense of better ideas. Let's face it- they are not well dug-in on the 'better ideas', or they would make the change.

    The bottom line here, is that we all must put up with this fight. But, it's a 'LEGAL FIGHT', not a market fight- they cannot compete openly on the market. That's why, like a child who cries to mammy about a stronger sibling, they are using bad laws to preserve their meal tickets- outdated meal tickets.

    Melted Metal Web Radio
    http://www.meltedmetal.com/

     

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    Ray Beckerman, Jan 6th, 2008 @ 5:01pm

    "Sherman of the RIAA refused to explicitly state that the RIAA considers copying CD's to a computer or other device for a consumers own use to be legal. If he won't say they consider it legal then that must mean they consider it illegal."

    Of course you are right JohnnyL. The proof is that at the Capitol v. Thomas trial they (a) stated it was illegal, and (b) brutally crossexamined Jammie Thomas for copying her cd's to the hard drive without their permission.

     

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    Nunya, Jan 7th, 2008 @ 12:38pm

    Go anon coward

    Its why I love reading this is because of coward. You speak your mind well.. "Anon Coward for President"

     

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