RIAA NOT Saying That Personal Copies Are Illegal (Yet)
from the no-need-to-exaggerate dept
I believe that lawyer Ray Beckerman has done some wonderful things in defending people being bullied by the RIAA and accused of infringing on copyrights with very little evidence. He also does a fantastic job keeping people informed on the issues with his Recording Industry vs. The People blog. However, his latest post about the RIAA changing their argument to say that making personal copies to one’s own computer is infringement is misleading at best. And, worse, many big sites are repeating the claim. Unfortunately, it’s not quite true and it seriously hurts the arguments of those who think the RIAA is going too far to mislead in this way. What the RIAA’s lawyers clearly seem to be saying is that putting mp3 files that you legally ripped into a shared Kazaa folder makes them no longer authorized. In other words, this is simply an extension of their old standby, the argument that “making available” is infringement. The RIAA’s argument here seems to be that putting content in a shared Kazaa folder is “making available,” and if making available is infringement, then clearly these files infringe.
Now, it’s quite fair to argue that point (and argue it we should, because there are troublesome implications if a shared folder is all you need to create infringing content). However, that is not, in any way, saying that simply ripping your CDs is infringement, and it weakens the arguments of Beckerman and other supporters to take the RIAA’s argument out of context and present it as something it is not. The RIAA certainly takes others’ arguments out of context and exaggerates statements to suggest that anyone questioning their strategy is just a “pirate.” However, that’s no reason to sink to the RIAA’s level. Instead, why can’t we be intellectually honest and focus on what the RIAA is actually saying and why that is problematic? There’s no reason to exaggerate the RIAA’s stance or take it out of context. It’s troublesome enough in real life without having to twist it further.
Filed Under: mp3s, personal copies, ray beckerman, riaa, shared files
Companies: riaa
Comments on “RIAA NOT Saying That Personal Copies Are Illegal (Yet)”
I’m confused here, what part of them trying to extend the making available part further sounds wrong? If their brief is accepted new precedence is created. They have been creating their own “law” in this fashion quite a bit.
Re: Re:
I’m confused here, what part of them trying to extend the making available part further sounds wrong? If their brief is accepted new precedence is created. They have been creating their own “law” in this fashion quite a bit.
I agree that it’s bad, but focus on what they’re actually doing: extending the definition of “making available.” That is NOT the same thing as claiming that “personal copies are illegal.” That’s misleading.
Re: Re: Re:
I can see both sides of this arguments and have gone back and re-read the documents from the court. The big problem I have is the following:
– “Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use.” Defendant’s admission was that the copies were for personal (fair) use.
– “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.” No indication of whether or not the “shared folder” is accessible by others. Their mere presence in the folder is enough to make them unauthorized. If the computer was NEVER connected to the internet again, based on this statement, they are STILL unauthorized even though they could never be distributed.
Based on this same premise, my own collection of music is unauthorized. I have ripped all my CD’s to MP3 format and placed them on a shared network folder at home. There is no access to this folder outside of the house, but it allows me to listen from my laptop or from my desktop as I see fit.
By avoiding or omitting (intentional or not) the connectivity angle, it comes down to the fact that they consider an MP3 file in a Shared folder to be unauthorized.
Re: Re: Re: Re:
Based on this same premise, my own collection of music is unauthorized. I have ripped all my CD’s to MP3 format and placed them on a shared network folder at home. There is no access to this folder outside of the house, but it allows me to listen from my laptop or from my desktop as I see fit.
This is what worried me when reading the original post. Many people these days have internal networks at home with shared folders that are not accessible through the Internet. This seems like a gray area that could be tricky, but the RIAA is not going to be able to find you unless your sharing you music over the Internet.
My only other thought is what if someone hacks into your network and then starts distributing your files? Is it your fault for making those file available? My initial thought it no since they were acquired during a crime (hacking) but if the courts do not define this now somebody might be looking at some hefty legal fees.
Re: Re: Re: Re:
Based on this same premise, my own collection of music is unauthorized. I have ripped all my CD’s to MP3 format and placed them on a shared network folder at home. There is no access to this folder outside of the house, but it allows me to listen from my laptop or from my desktop as I see fit.
At least with Windows, by default there is a root share created for each drive on your machine. Open up Windows Explorer and type “localhostc$” into the address field.
So technically, ALL music on a Windows box is in a shared folder.
Re: Re: Re:2 Re:
Posting stripped some characters. That address should read
“[backslash][backslash]localhost[backslash]c$”.
Re: Re: Re: Re:
Based on this same premise, my own collection of music is unauthorized. I have ripped all my CD’s to MP3 format and placed them on a shared network folder at home. There is no access to this folder outside of the house, but it allows me to listen from my laptop or from my desktop as I see fit.
Yes. I absolutely agree that this is a huge problem and should be pointed out. But you are pointing out the specific case — which is not what Beckerman and others have done. They’re claiming (incorrectly) that the RIAA said any personal rip is illegal. The filing does not say that, and to claim that it does weakens the case.
Ray Beckerman's response
(link)I said almost the same thing in the slashdot comment linked above. He answered the comment succinctly.
The Hotaling case
Mike, I’m afraid you’re missing the legal game the RIAA is playing.
They were asked a simple question by the judge, in substance “do you contend the copies themselves were illegally made, before they were ‘shared’?”
The reason he was asking is that in the Hotaling case the copies had been admittedly made illegally.
A “no” answer would have made Hotaling distinguishable.
So it went with a “yes” answer — repeating what SONY’s in-house counsel said at the Capitol v. Thomas trial. As to whether placing the files in a “shared” files folder is an infringement of the distribution right, that is an entirely different question. They tried to confuse the two. And they have confused you as well.
Re: The Hotaling case
Ray,
I agree that the the RIAA is playing a game, but you don’t need to play the same game. They ARE trying to extend the definition, but NOT to the point that you claim they are. You say they’re saying “making personal copies of songs from one’s CD onto one’s computer is an infringement.” That is NOT what they are saying. They are trying to extend what’s infringement, but it does not appear that they are claiming a private copy is infringing on its face. Instead, they are noting that the private copy *in a shared folder* (i.e., making available) is infringing.
I can’t see anywhere in the filing that says what you claim about them saying simply making personal copies is infringement. It’s quite clear that they’re saying once you put personal copies into a shared folder they are no longer authorized. Now, we agree that this is questionable, but it is not the same as simply saying the RIAA says personal copies are infringing.
Yes, the judge was asking them if they were illegal before they were shared, but the RIAA’s response was pretty clear: yes, but only because they were put into a shared folder.
I’m all for calling out sneaky actions by the RIAA, but we shouldn’t take them out of context.
Re: Re: The Hotaling case
Maybe I should read the brief, but does it say WHICH shared folder? I have lots of shared folders on my computer, none of which are for music sharing. By RIAA standards, that would mean that any mp3 I have in any of my shared folders is illegal, regardless of how it got there.
Re: Re: Re: The Hotaling case
Maybe I should read the brief, but does it say WHICH shared folder? I have lots of shared folders on my computer, none of which are for music sharing. By RIAA standards, that would mean that any mp3 I have in any of my shared folders is illegal, regardless of how it got there.
While the brief is *mostly* clear that it means the Kazaa shared folder, I agree that this is one area where the RIAA could later get tricky in trying to use this as precedent. That’s why I have a problem with their arguments — but that doesn’t mean that they say what Ray has them saying.
Re: Re: Re: The Hotaling case
Additionally, on a networked Windows computer all files are, by default, “shared” through Administrative Shares. Consequently, any mp3 ripped to the hard drive (even one not put into, say, a Kazaa shared directory) of a Windows computer is technically in a shared folder. And that folder could be accessed by anyone with administrative privileges on the computer (which in a household or company could be quite a few people).
Re: Re: The Hotaling case
I respectfully disagree, Mike.
The judge was asking several questions. He very narrowly asked whether the copies themselves had been made illegally, i.e. before Mr. Howell did anything with them.
That was an important question, because that was the case in Hotaling, and Napster distinguished Hotaling on that ground.
The RIAA responded “yes”.
Yes they fudged it by throwing in that nonresponsive phrase.
And you want to give them credit for it.
But they meant “yes” and testified to that effect at the Capitol v. Thomas trial.
Re: Re: Re: The Hotaling case
Ray,
I now respectfully disagree with you.
The RIAA responded “yes, because it’s in a shared folder” and we should admit that.
I am not “giving them credit for it.” I’m simply being honest here. It does no good to stretch what the RIAA said beyond what they actually said. Just wait… they’ll eventually say it much more clearly anyway. Stretching this filing to say something it doesn’t does not help the situation.
But they meant “yes” and testified to that effect at the Capitol v. Thomas trial.
This is a different trial. I know what was said in the Thomas trial and we wrote about it here. But you claimed that they said it in this case, which they did not.
Re: Re: Re:2 The Hotaling case
Mike, thought you might get a smile out of this passage from Wired.com:
Re: Re: The Hotaling case
Mike wrote:
Mike do you honestly believe that (a) the response was “pretty clear” and (b) you are such a more skillful writer than the RIAA’s $375 per hour legal writers, that you are able to express that thought clearly, and they were not? If so, I have a bridge in Brooklyn I’d like to sell you.
The RIAA, in a case where they have virtually no opposition, is looking to try to get a ruling that the copies themselves are unauthorized. They have succeeded in confusing judges all across the country in undefended or poorly defended cases such as this one, and they have already confused this judge once on a very major point, and they are trying to do it again. You are writing from an abstract ivory tower, without knowledge of how the litigation process works, without knowledge of the Hotaling case and how it has been distinguished, without knowledge of the exact reason the judge was asking the question, and without an understanding of the RIAA lawyers’ litigation tactics. I am in the trenches, fighting with these ghouls every day. And I have 34 years of experience in litigation and in copyright law.
If you want to disagree with me, that is fine. As far as that goes, I’m pretty sure I’m right and that you’re wrong. But you can disagree all you like.
But please do not accuse me of stooping to the RIAA lawyers’ level or of trying to misrepresent something. It was I who sent the document to Internet Law and Regulation so it can be posted online and available to all the world to review. The only reason you even know about it, or have been able to read it and disagree with me is that I made it available to you. So don’t suggest that I’m trying to mislead anyone.
Re: Re: Re: The Hotaling case
Ray,
I respect what you are doing and what you have done in the past quite a bit. That said, I find it surprising and a little out of order that you would make statements like you do here in the comments. You seem to accuse me both of being stupid and of not knowing what’s going on from my “ivory tower.” That’s fairly obnoxious and incorrect. You know quite well that I understand all too well what’s going on. I’m a bit surprised that you would make a personal attack over a disagreement of interpretation.
I’m sorry if you feel offended by my suggesting that you have stooped to their level — and perhaps it’s for that reason you feel I deserve the comments above. However, you still have failed to show how what the RIAA is saying actually matches up with what you claim.
Trust me, I know the tricks that the RIAA pulls, and I have no doubt that they’ll continue to try to extend the legal definition of what’s infringing. The problem here is that it still does not appear to say what you claim they said. They are quite clear in the response that the answer is “yes *because* it’s a shared folder.” Now, you and I both agree that that’s incorrect. A file shouldn’t suddenly become “unauthorized” because it’s in a shared folder — but why not focus on that issue, rather than trying to make it sound like the RIAA said something they didn’t.
So, why don’t we make this simple. Since I’m the simpleton in my ivory tower, and you’re the expert, can you just explain in clear terms where in this filing the RIAA makes the claim that personal copies (having nothing to do with a shared folder) are unauthorized?
Re: Re: Re:2 The Hotaling case
The same language that was quoted in my Slashdot post:
If you disagree with me that that’s what they are trying to put over, disagree with me all you like, but it’s pretty illogical and unfair to accuse someone of trying to mislead who
-quoted the exact language upon which he was relying and
-put the entire document on which he was relying online for all the world — including my accuser — to see. If you respect what I have done, then please treat me with respect.
PS. Your reader Rama’s analysis is dead on.
Re: Re: Re:3 The Hotaling case
The same language that was quoted in my Slashdot post:
And that language clearly says that the *reason* they are unauthorized is because they are in the shared folder.
As for respect, I have treated you with respect. I have not said that you were purposely misleading. However, I did say that the impact of your statements were that many people now believe something that still does not appear to be true: that the RIAA is saying simply copying your CD is illegal. That is not true.
Re: Re: Re:4 The Hotaling case
In case you forgot what you wrote, you (a) falsely accused me of taking something out of context, and (b) accused me of intellectual dishonesty. Here I’ll remind you of what you wrote:
Thanks mcgrew
Thanks mcgrew…. If I’d have known you were going to post that comment I wouldn’t have bothered posting mine. All the best. Ray
Mike, wrong
Read it.
Not the summary.
The actual papers.
Notice the cleverly placed words like “moreover”. Moreover implies adding something to something that is also considered wrong.
The thing that “disribution” is added to, is the actual making of the mp3s.
Made mp3s AND shared. Both illegal . Not just one of the actions.
Mr. Beckerman is right.
Re: Mike, wrong
To be specific….
Page 15, line 20
“Moreover, Defendant had no authorization to distribute Plaintiffs’ copyrighted recordings”
Re: Mike, wrong
I’ve read the full filing. The word “moreover” is meaningless here. The key sentence is: “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.”
If you read the rest of the document, the RIAA’s lawyers are quite clear that it was putting the files into this folder that was the problem. At no point do they just say that mp3s are unauthorized. There is a moreover in the sentence after that, but they’ve already included the “shared folder” part.
Re: Re: Mike, wrong
The problem with your reading of the RIAA’s answer as saying it means the placement is that you’re forgetting the original question by the Judge. He has asked if the defendants making the MP3s themselves was legal. If they had only been referring to the files placed in the shared folder as being authorized they would have stated ” Once the Defendant placed the MP3s in a shared folder they were no longer authorised” instead of “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”.
Notice that they make no reference to copies for personal use but to the authorised copies of the Plantiffs, which CDs are! The RIAA lawyers as per usual answered in such a way that if defendant loses they can use the ruling to state that a Judge has already accepted the making of MP3s copies for personal use is illegal.
Re: Re: Re: Mike, wrong
Rama wrote:
Rama, thank you. You’ve said it more eloquently than I could. You have exactly put your finger on Mike’s fallacy, and on what the RIAA’s game is.
Re: Re: Re: Mike, wrong
The problem with your reading of the RIAA’s answer as saying it means the placement is that you’re forgetting the original question by the Judge
I am not forgetting the question. The answer is clear. The RIAA is saying “yes because it’s in a shared folder.” It seems like you are ignoring the second half of the answer.
I agree with the rest of your comment that this is still quite questionable, but they are NOT saying that personal copies are unauthorized.
Re: Re: Re:2 Asked and answered?
The judge asked a question. “were the copies illegally made”?
If the question was as phrased, the RIAA’s lawyer’s answer was disingenuous at best, dishonest at wost.
The correct answer is “no, but their being placed in a public sharable directory allowed the circulation of illegal copies.”
Make no mistake, if the RIAA could wipe out the practice of ripping MP3s, they would do so in a heartbeat.
Anything that hurts the RIAA is good with me. Lies or not. They’ve made up enough untruths themselves. Fuck ’em.
RIAA
The problem with this conversation is that we are all ethical techy-types. The RIAA lawyers are all slimy dirtbag lawyer types. They will do and say anything, regardless of whether it is technically accurate to win the day.
While there may be some valid technical differences between what they wrote and what was characterized by Ray, the real issue is that RIAA lawyers will use that language to any advantage they can down the road. Staying one step ahead of them is what’s important in this fight.
Re: RIAA
The problem with this conversation is that we are all ethical techy-types. The RIAA lawyers are all slimy dirtbag lawyer types. They will do and say anything, regardless of whether it is technically accurate to win the day.
Indeed. But that doesn’t mean we ought to stoop to their level.
While there may be some valid technical differences between what they wrote and what was characterized by Ray, the real issue is that RIAA lawyers will use that language to any advantage they can down the road. Staying one step ahead of them is what’s important in this fight.
It’s not worth staying one step ahead if it means mischaracterizing what they do. It weakens all of the legitimate arguments that are out there. So, absolutely pour light on what the RIAA is doing and how sneaky and underhanded it is — but be quite honest about it or it will come back to bite you.
Shared folders..
So, since I have my “Music” folder shared so that I can access my full music library from my laptop(Which doesn’t have enough free HD space to hold my whole music library).. But I don’t share it with anything outside my home network.. are my mp3s illegal copies now? Or were they specific enough to suggest only folders being shared with other people?
Re: Shared folders..
Well , depends on how you read it.
If you assume they used weasel words for trying to set some sort of precedent (which I think might exactly be the case), 1)you shouldn’t have copied music b) you shouldn’t have shared it
According to Techdirt, you may assume they’re referring specifically to Kazaa-shared folders, as stated in the papers
Re: Shared folders..
“So, since I have my “Music” folder shared so that I can access my full music library from my laptop(Which doesn’t have enough free HD space to hold my whole music library).. But I don’t share it with anything outside my home network.. are my mp3s illegal copies now? Or were they specific enough to suggest only folders being shared with other people?”
IANAL, but you are in the clear here.
The law is not clear on this. It is not in the RIAA’s interest to bring a case like this, because they would have the huge risk of a ruling against them. Right now, they can use the ambiguity to their advantage and claim that you cannot rip your own CDs or share them amongst devices within your household. If they brought a case like this to trial, there is a very real chance that they lose, and then they can’t take advantage of the ambiguity.
If you are likely to lose in a precedent setting case, or if the cost of losing would be huge, you are better off living with the ambiguity rather than let the precedent be set.
More than just "Making Available"
IANAL, and I haven’t read all the documents, but the RIAA claims that the defendant destroyed the KaZaa log files AFTER they were subpoenaed. In general if a side destroys evidence the presumption is that the evidence was damaging to them. If the logs were indeed deleted as the RIAA claims, the presumption will be that the files in question were distributed.
Owned property
“When asked by the RIAA’s lead counsel whether it was wrong for consumers to make copies of CDs they have purchased, Jennifer Pariser replied in the negative. “When an individual makes a copy of a song for himself, I suppose we can say he stole a song,” said Pariser. Making “a copy” of a song you own is just “a nice way of saying ‘steals just one copy’,” according to Pariser.” – from ArsTechnica.
I find this quite hard to swallow and a judge should as well. The counsel states that it wishes to dictate what you do with your own property. They should have lost the case then and there.
Re: Owned property
I find this quite hard to swallow and a judge should as well. The counsel states that it wishes to dictate what you do with your own property. They should have lost the case then and there.
Please note that that quote is from an entirely different case — and at the time we pointed out how ridiculous that statement was.
However, to use that quote and say it relates to this case is incorrect.
Re: Owned property
Ahem…
It isn’t owned property.
Just like I can’t take a copy of Adobe Photoshop I “own” and put it on 100 machines.
Even though I paid for it.
Or you can’t make 100 copies of the CD and sell them for 6$ a piece.
(this is not about fair use, etc… but about not being able to own things you buy)
Re: Re: Owned property
Hmm, your response is flawed. Let’s think about this. First of all, no, you cannot have 100 copies of Photoshop actively installed on different computers. The legal license that you agree to during the installation dictates that you can only install it on one computer at a time, and you cannot install the software until you agree to those terms. Therefore, if you violate those terms, you are pirating the software. You can, however, make a copy of the installation CD or DVD, just in case the first one gets lost or damaged. That way you can have a backup disc to install your legal copy from.
Now, as for owning music, no, when you buy a CD, you do not own the music that’s on it. What you have purchased is the right to hear said music. Now, fair use (and common sense) dictates that others can listen to your copy as long as you maintain ownership of it, and as long as you do not profit from it. If you rip the music from the CD into digital music files to put on another device in your possession, that is also fair use, because again, you have purchased the right to hear that music, and should be allowed to hear it on any device in any format without purchasing it multiple times.
Now, if you put the music in a shared folder that others on the internet can access, it is fair to call that pirating, because you are allowing copies to be made that are no longer under your ownership, and the artist receives no compensation for them. But if you have those files in a shared folder that is ONLY accessible within your home network, or through a secure remote connection that only you can access, that again falls under fair use, because that is simply another means to access what you have already purchased.
To me this is clear as day, and should not have to be argued in court. You have to admit, the RIAA does have some legitimate cases. What’s legal and what’s right do not always jive. It may not be right that the RIAA is making tons of money off the music and the artist makes very little, and that their tactics for suing people are questionable at best and downright illegal at worst. However, if we sink to their level by allowing illegal copies of the content to be made, we are no better than they are.
That being said, the RIAA needs to die, now that artists have a very proven and effective platform to market their wares directly to the public. Doing so will mean much cheaper music for us and more money for the artists, which means everybody will be happier.
Re: Re: Re: Owned property
Now, if you put the music in a shared folder that others on the internet can access, it is fair to call that pirating, because you are allowing copies to be made that are no longer under your ownership, and the artist receives no compensation for them.
It’s not only pirating, it’s murder! (it kills business models)
Atlantic v. Howell
It is kind of interesting to note here that the defendant in this case had a defense that was not really a defense and made him look like a liar. First he says that the copies were only for his use and not being shared. Then he says when MediaSentry took the screen shots of his folder that he was at work (which really doesn’t make sense). Finally, he claims that 3rd party software put those files into his shared folder, but did not offer any proof of that.
I can see why he lost the case, the defense just was not strong enough.
Slippery Slope
The RIAA will eventually have all ripped music labeled as piracy if this slope is followed thru. Think about it.
1. Music copied thru p2p networks is illegal piracy.
2. Music stored in a p2p shared directory is piracy
3. Music stored in any shared directory is piracy
(By default most OS’s create directories/folders with permissions set to 755 read/write for owner and readable by the world, so by default all folders are shareable.)
4. Music ripped to shared folders is piracy.
5. Ripped music is piracy.
6. Ripping Music is illegal and a jailable offense.
Remember all music in iTunes (ripped or purchased from iTunes)is technically shareable to 5 computers and an unlimited iPods and software exists to connect to a iTunes library across the internet as well so one can listen to your music at work or home (sharable).
Extreme yes. Possible thru carefully crafted judgements yes.
I smell a flame war
OK, folks. Let’s try to figure this out, and not get too defensive or personal. I read part of the brief, and it looks like the most relevant section is this:
[quote]
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.
[end quote]
OK, so there are two things going on here. RIAA is trying to stretch the meaning of “making available”. It’s kinda ridiculous that this “making available” standard even exists. At any rate, if we parse this language we see that the RIAA thinks that we are making “unauthorized copies” by
1. converting .wav files to .mp3 files
2. putting these .mp3 files on a “shared” folder
It doesn’t appear, at first blush, that the RIAA is saying, here in this brief, that ripping a CD to the computer is “unauthorized copying”. They may make that point later on.
The problem is that the corporations keep doing this creeping thing where they move the goal posts when it comes to defining copyright. What constitutes an infringement? Well according to such-and-such law, during the month of May, on a night of the full moon…It’s absurd.
I agree with Mr. Beckerman that we need to be vigilant. The RIAA has been up to its usual sneaky tactics. I also think Mike has a point: it’s not all blood and gore. We need to attack the RIAA with Fair Use. Instead of being so defensive, we should build strategies on how to expand the definition of fair use.
This “Right of First Sale” idea seems like a logical starting point. Just how is it that your company has the right to tell me what to do with my product even a second after you sold it to me? Can’t I sell it to someone else? Can’t I give it away for free? OK, enough fun.
We need to seriously boycott the RIAA, and that means not even downloading a single “hit song” or what have you. Support your local independent artist. Instead of sitting at home and downloading music, go out to a club and hear some local bands. If all of the local bands suck, make your own music. We need to completely deprive the RIAA of their reason for existence: music distribution.
The internet interprets censorship as damage. It routes around it. We need to just avoid RIAA-tainted bands and focus on getting our music through user-defined channels. Any other way, we’re just feeding the lawyers.
Can you "clearly seem"?
“clearly seem”.
Hmm … not so clear, perhaps?
an mp3 file is not a back-up of a cda file
a lot of the people vs RIAA is twisted by BOTH sides
a “back-up copy” ????
the CD would be called AUDIO CD and composed of a set of
files called Track01.CDA, Track02.CDA, etc
so, a “rip” including tags and diff formats IS NOT a back-up. it is modified to suit our needs/wants.
“fair use” is fair to who ??? US, period.
the recording industry has “opted-out” of embracing technology. their choice.
Bad lawyers make bad law
I think the biggest problem that I have with this case is this:
Defendant pro se
“A self-represented litigant has a fool for a client”
Case in point.
Whatever they said now masks what they truly mean.
because the RIAA said last year that personal copies weren’t legit. See what the EFF said about it in February of 2006. Don’t be lulled.
http://preview.tinyurl.com/2kjgmu
I’ve tried posting this to Ray’s site, but he obviously will not publish it.
Bottom line: THERE IS A DIFFERENCE BETWEEN “UNAUTHORIZED” AND “INFRINGEMENT” (“ILLEGAL”)
Read below to see why Ray is wrong and Mike is more (though not entirely) correct.
Mp3s ripped from CDs are most always “unauthorized” (you do not have expressed, written consent to copy them, do you?). However, they do not always constitute “copyright infringement” such that they are “unlawful.”
The author here and the opportunistic lawyers running the “Recording Industry vs The People” blog are abusing the public’s ignorance of legal minutiae in order to get everyone in a huff.
Pay attention to the terminology:
In order to establish a prima facie case of copyright infringement for the act of copying, one must show, among other things, that an unauthorized copy was made. Once a prima facie case is shown, it can be rebutted by the defendant by a variety of defenses, one of which is called “fair use.” Fair use can apply to shield unauthorized copying from infringement liability when certain criteria are met, such as the copies being solely for personal use.
Thus, if the fair use defense prevails, no copyright infringement, and thus no unlawful activity, exists even when unauthorized copies were made.
This case deals with copyright infringement for the act of distribution. In order to establish the elements of this infringement, it is likely necessary to show that unauthorized copies existed. Thus, the plaintiff is claiming that the ripped mp3s are unauthorized in order to meet this element of the claim for illegal distribution. Thus, while it is not unlawful in and of itself to make unauthorized copies for personal use, this act in combination with other acts can make one liable for illegal distribution. They are NOT claiming that CD ripping itself is unlawful or constitutes infringement. It is merely unauthorized.
Note that the defendant did not dispute that the copies were “unauthorized.” That is because it is well known that ripping CDs is unauthorized (though not unlawful).
Note also that this brief is fully consistent with the RIAA’s previous statements in Grokster since the statements in Grokster refer to copying as not being “unlawful”, while here the copying is rightly being called “unauthorized.”
Re: Re:
Read below to see why Ray is wrong and Mike is more (though not entirely) correct.
Scott… interesting analysis. Actually, your explanation makes a LOT more sense than the one Ray has offered.
Note that the defendant did not dispute that the copies were “unauthorized.” That is because it is well known that ripping CDs is unauthorized (though not unlawful).
And that’s the key. Thanks for posting this.
Re: Re:
Yes. Such authorization is granted via the fair use clause of the US Copyright Act of 1976 (17 U.S.C. § 107). I think that pretty much qualifies as both “expressed” and “written”.
Re: Re: Re:
Anonymous Coward-
No, when we speak of authorization in copyright law, it refers to consent by the copyright owners, not whether it is in violation of a statute (note that section 107 refers to section 106, which defines the rights of a copyright owner and the authorization he is entitled to give). This is the point I tried to drive home in my post — just because the copy is unauthorized does not mean it is an infringement or is unlawful. It is an esoteric legal distinction that Mr. Beckerman has used to take advantage of already anger-prone people by confusion.
The issue here deals with burdens of proof. Section 106 defines rights that are “subject to section 107” (which is the fair use provision, as you point out). Thus section 107 provides a defense to infringement even where the rights set forth in section 106 are violated. All you have to do to verify this point on your own is read the words of section 107. It explicitly states that, even if the rights of section 106 are violated (such as, for example, not having the authorization to copy), “it is not an infringement of copyright” if the fair use criteria are met.
As such, even if one makes copies that are not authorized (and thus in violation of section 106 rights), the copies will not result in infringement liability or be “unlawful” if the defendant shows a legitimate fair use in accordance with section 107.
This case has little to do with fair use. In my opinion, people should take comfort in the fact that the RIAA only claims that copies are “unauthorized.” That is a settled matter (by most accounts) and is nothing new. They do need to say that the copies were unauthorized if they want to apply Hotaling, as is somewhat correctly stated by Mr. Beckerman.
BUT: the fact that they stopped at authorization and did not assert “unlawfulness” is essentially an implicit recognition that fair use protects CD ripping. Everyone wants them to admit this on the record, but an elementary legal tenet is that you don’t admit what you don’t have to. Fair use is not at issue here, it was not at issue in Hotaling, and therefore they need not concede fair use. It is enough to say that the copies were unauthorized in order to apply the holding of Hotaling (the first sentence of Hotaling decision, which states the ultimate holding, does not require unlawful infringement: “we hold that a library distributes a published work, within the meaning of the Copyright Act, 17 U.S.C. Sections 101et seq., when it places an **unauthorized** copy of the work in its collection, includes the copy in its catalog or index system, and makes the copy available to the public” (emphasis added)).
I would expect that the seasoned copyright lawyer Mr. Beckerman knows all this, so I have no idea why he claims on his blog that the RIAA makes the contention that “making personal copies of songs from one’s CD onto one’s computer is an INFRINGEMENT” (again, emphasis added). Perhaps he can enlighten me and the rest of you of his reasons by making ANY SORT OF REPLY to this or my earlier post, and maybe posting these ideas on his own blog (instead of ignoring my submissions and choosing not to publish it).
After all, I don’t have the 34 some odd years of experience he has.
Re: Re: Re: Re:
You say potato, I say potato. I also say authorized by statute. I suppose that where we differ then is whether or not we believe the government has the authority to give authorization by statute. Some people argue that copyright holders have sole authority on issues of copy authorization and the government doesn’t have the authority to override it. I argue that it does.
Re: Re: Re:2 Re:
You may be correct in the general sense, but we are talking about a specific term that is used in the specific context of the Copyright Act. As a matter of statutory construction, authorization in this case refers to authorization by the copyright owner. See section 106:
“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords…”
It would not make sense to say that the fair use provisions of section 107 “authorize” copies that were otherwise unconsented to by the owner. It is proper, on the other hand, to say that section 107 permits the avoidance infringement liability when one makes unauthorized copies for purposes that satisfy the criteria therein.
In any case, you interpretation of section 107 does not fit with or explain the language used by the plaintiffs in this case. Remember, fair use was never an issue in the case. They used for infringement of the right to DISTRIBUTE, not the right to copy.
Re: Re: Re:3 Re:
If you mean “authorized by the copyright owner” then that’s what you need to say. If you just say “authorized” with no qualifications then it may be taken in the general case to mean authorized by any means. Other wise it’s similar to saying “it’s illegal to use a hammer” (not true) when what you meant was “it’s illegal to use a hammer to commit assault” (true).
Re: Re: Re:4 Re:
We are, and always were, talking about the specific context of the court filing where the word was used. I didn’t need to qualify that.
Re: Re: Re:5 Re:
We are, and always were, talking about the specific context of the court filing where the word was used. I didn’t need to qualify that.
In that case then, the statutes were clearly in context and it is fair to conclude that you meant that the copying was not authorized by statute either. I’m glad that you admit that you really meant what you wrote without limitation beyond context (you were getting slippery there). That brings us back from your claim that you really only meant “by the copyright holder”. I still hold that the government is a higher authority than the copyright holder and may by statute authorize copying without the copyright holder’s consent. It is clear that you believe otherwise and I simply disagree.
Re: Re: Re:6 Re:
“I still hold that the government is a higher authority than the copyright holder and may by statute authorize copying without the copyright holder’s consent. It is clear that you believe otherwise and I simply disagree.” – Anonymous Coward
=================================================
Copyrights are guaranteed by the Constitution of the United States. Neither Congress nor the president can override the Constitution. A Constitutional amendment would be required and you can bet yjr Constitution will not be changed so a few people can get free music for a short time through Internet downloads.
Re: Re: Re:7 Re:
It occurred to me that some readers of my prior post might not take the trouble to read the relevant part of the Constitution concerning copyright ownership. So, anticipating that, here is the relevant language. It is Article I, Section 8, paragraph 8:
“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”
That language has been in the Constitution since its beginning. It was not introduced as a law by some congressmen swayed by lobbyists from the RIAA and MPAA. Note particularly the words, “exclusive right.” The exclusive rights, which include distribution rights, do not go away just because the copyrighted material may reside in a computer storage medium.
Re: Re: Re:8 Re:
It occurred to me that some readers of my prior post might not take the trouble to read the relevant part of the Constitution concerning copyright ownership.
Scorpiaux, I wrote this on a different post, but I’m assuming you’re new around here. We’ve discussed that clause of the Constitution many times before.
That language has been in the Constitution since its beginning. It was not introduced as a law by some congressmen swayed by lobbyists from the RIAA and MPAA. Note particularly the words, “exclusive right.” The exclusive rights, which include distribution rights, do not go away just because the copyrighted material may reside in a computer storage medium.
You chose to highlight one part, but you left out the much more important part: “To promote the progress of science and useful arts…” If the use of the monopoly does NOT promote the progress of science and the useful arts, then it is clearly unconstitutional. Much of our arguments are that these monopolies do not promote such progress.
Re: Re: Re:9 Re:
“You chose to highlight one part, but you left out the much more important part: “To promote the progress of science and useful arts…” If the use of the monopoly does NOT promote the progress of science and the useful arts, then it is clearly unconstitutional. Much of our arguments are that these monopolies do not promote such progress.”
I am not aware that either the RIAA or the MPAA have monoplies on intellectual property. Even though the RIAA claims to have 90% of the recording artists under contract, I am also not aware of them being determined to be monopolies by Congress. In fact, on many blogs I see links to “non-RIAA” sites.
Re: Re: Re:10 Re:
I am not aware that either the RIAA or the MPAA have monoplies on intellectual property. Even though the RIAA claims to have 90% of the recording artists under contract, I am also not aware of them being determined to be monopolies by Congress. In fact, on many blogs I see links to “non-RIAA” sites.
Did you really take what I said that out of context? A copyright or a patent is a monopoly ON THAT PARTICULAR CONTENT OR IDEA. Not on all music or all ideas. And the point is that if that monopoly is being used to hold back the progress of science or the useful arts, then it is unconstitutional. And there is tremendous evidence that the continued expansion and use of both copyright and patent law has held back the progress, and is, thus, unconstitutional.
Re: Re: Re:11 Re
Copyright and patent holders do not have the right to hold onto their intellectual property in perpetuity. It is up to Congress to decide how long the copyrights and patents should be protected from infringement. Don’t like the current time frames granted to creators? Talk to your Congressman.
Just a heads-up for you. The Constitution was deliberately constructed so that it couldn’t be easily changed by “light and transient” causes. Business models are light and transient causes so you might consider that in your crusade to force change to suit your personal philosophy.
Re: Re: Re:5 Re:
Oops, hit the “Submit” rather than “Preview” button.
Let me add:
Sometimes I will learning something new and interesting from a discussion. In this case though, all I’ve learned is that you tend to flip-flop. First you say one thing, then you try qualify your way out of it, then you disclaim any need to qualify. Back and forth. Sorry, that’s not interesting in the least to me and I’m not going to waste my time playing that game. End of discussion.
Everyone here seems to assume that it’s fair use to rip a song to your hard drive. Can anyone cite a single case that supports that conclusion? Don’t be so sure that RIAA is wrong.
Re: fair use
There are no known decisions on the subject one way or the other. I believe that most people who feel that it is a fair use do so because they feel that it would be a logical extension of the SONY Betamax case, and they are probably correct; but as you point out there is no case on it.
Re: Re:
Everyone here seems to assume that it’s fair use to rip a song to your hard drive. Can anyone cite a single case that supports that conclusion? Don’t be so sure that RIAA is wrong.
I’m not a lawyer, but my general understanding of the law is that one is legally free to do what one wants as long as it is not prohibited by law. In other words, actions do not have to be explicitly permitted by law if they are not otherwise prohibited. So, rather than challenging everyone to cite a case that shows that copying music to a hard drive is permitted, you need to cite one that says that it is prohibited. Because unless it is prohibited, then it is permitted. So I ask you, can you cite a single case that supports a conclusion that it is generally prohibited?
Yeah, I didn’t think so.
The RIAA stated in congressional hearings at least a year ago that they consider simply ripping CDs to your hard drive, regardless of which directory, to be infringement. I’m not sure why this is something new this week.
Re: Re:
The only thing new about it is that this is the first known instance of them taking that position formally in court papers.
Why
Scott and Mike, I see you’re of a mind… so I’ll ask both of you.
Why do you think the RIAA inserted this language:
Re: Why
Ray, I’m not sure what you are insinuating. I’ve consistently maintained that once the CD is converted into mp3, it is unauthorized (but not unlawful due to fair use) no matter what folder it is in. Please elaborate. Also, please point to the errors in my posts so that we may have a constructive discussion.
Re: Re: Why
In order to have a “constructive discussion” you have to answer my question.
Re: Why
Scott and Mike, I see you’re of a mind… so I’ll ask both of you. Why do you think the RIAA inserted this language: Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format…..
Ray, come on. You left out the second half of that sentence: “… and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.”
It’s a pretty straightforward logic statement. If they did A&B then C. They do not say A = C. They say A AND B = C.
I think WE both agree that A & B does not equal C… but that is what the RIAA is saying, and you’re claiming that they’re saying A = C. That’s my problem with your argument.
Re: Re: Why
Why are you and Scott having so much difficulty answering my question?
If they meant what you and Scott claim they meant, they could have said
Instead they said
I’ll repeat my question.
Why did they add the language about converting the files into a compressed .mp3 format for his and his wife’s use?
Additional Mentions
Mike,
By consistently applying your same interpretive logic, if the RIAA had said also mentioned a date and computer brand, as well as location, in their response such as “When Defendant converted Plaintiffs’ recording into the compressed .mp3 format and placed them in his shared folder on his Dell computer on January 13th, they were no longer the authorized copies distributed by Plaintiffs”, then one would conclude that the RIAA was also claiming that it was only unauthorized if it was done on a Dell Computer on January 13th. That result would seem absurd to me and so I find your logic to be faulty because it produces absurd results.
Re: Additional Mentions
By consistently applying your same interpretive logic, if the RIAA had said also mentioned a date and computer brand, as well as location, in their response such as “When Defendant converted Plaintiffs’ recording into the compressed .mp3 format and placed them in his shared folder on his Dell computer on January 13th, they were no longer the authorized copies distributed by Plaintiffs”, then one would conclude that the RIAA was also claiming that it was only unauthorized if it was done on a Dell Computer on January 13th.
No. That’s simply not true in any sense. First of all, if you just look at that sentence alone it doesn’t even imply what you said. As I noted to Ray in the comment above, the RIAA clearly says A + B = C. Your description simply changes what the “B” is, but doesn’t change the equation. Nowhere in this filing does the RIAA come out and say A = C.
But, more importantly, if you read the rest of the filing, especially the part around this specific quote, it’s focused on explaining WHY that “B” section makes it unauthorized. They go on and on about why placing it in a shared folder makes it unauthorized.
Re: Re: Additional Mentions
As I noted to Ray in the comment above, the RIAA clearly says A + B = C
Actually, A + B = C would be read as “A or B gives C” in a logic equation. I think what you may have meant was A * B = C, which would be read as “A and B gives C”.
Your description simply changes what the “B” is, but doesn’t change the equation.
That’s exactly the point. To test the logic with different inputs. At which point it fails in my estimation. (Well, actually I changed it to A * (B * D * E) = C, but it algebraically reduces in the same manner)
But, more importantly, if you read the rest of the filing, especially the part around this specific quote, it’s focused on explaining WHY that “B” section makes it unauthorized. They go on and on about why placing it in a shared folder makes it unauthorized.
That’s a whole different argument, and not one that I addressed.
I quit
I’m really not enjoying this debate. I consider TechDirt’s coverage of the RIAA’s onslaught to be among the best. I read your reports regularly.
I don’t mind your disagreeing with me, but I don’t like being accused of intellectual dishonesty just because you disagree with me. I didn’t take anything out of context. I quoted the entire passage, and I made the entire document available to all the world to see.
If you and Scott want to continue piling on, pile on.
But I’m too busy fighting our enemies to fight my friends too.
So I throw in the towel. Say whatever you want to say. If you think I deserve to be spoken of in the terms that you spoke of me, then so be it. I’m sorry you feel that way.
Please note that Mike has never adopted my interpretation, we have differing views. Also, I never accused you of being intellectually honest. I wanted to know from a legal perspective your rationalization for the statement you made on your blog. That you are “not enjoying this debate” and quit participating is great evidence to me that you can’t find anything wrong with my statements. I have answered your question by saying that I acknowledge that the plaintiff says that ripping is unauthorized and you can’t do me the courtesy of answering mine.
To rephrase my questions, I’ll put it this way (and in yes/no format so that you don’t have to spend much time):
1. Do you consider “unauthorized” to be the legal equivalent to “infringement” in the context of this case?
2. Do you believe that there are situations in which unauthorized copies are made but that such activity is nonetheless completely legal?
Take a closer look
You guys are focusing on the wrong part of the statement. Take a closer look at the last part:
The only copies ever distributed by the plaintiffs are the CDs the defendant, Howell, owned. They never distributed his MP3s, he made those himself. It makes no sense to say that his MP3s are “no longer the authorized copies distributed by Plaintiffs.”
Re: Take a closer look
“no longer the authorized copies distributed by Plaintiffs.”
Good point.
Re: Take a closer look
Hmmm. That looks like a weasel clause put in to make the statement true no matter the rest of it. So technically, it wouldn’t matter if the copies were shared or not, they would still be “unauthorized” because of the fact that they were in a different format (mp3) and not the original CDs as “distributed by Plaintiffs”. Yep. That reasoning, if accepted by the court, would sure make ripping your CDs to mp3 format (or any other media) illegal.
RIAA is wrong!
RIAA is very wrong! Many people hate RIAA for reasons. What you need to do? Download music and save to CD or hard drive. Share music with your best friend and family only. Do not share music with unknown people can get serious problems! If RIAA still bother to people and will get easily angry. RIAA was smallest one. But more than 2 millions of people will hate RIAA. RIAA must quit and no more hurt people’s feeling. God now watch on RIAA. RIAA is almost same as evil like Satan do. Blame on people for doing wrong. RIAA is in biggest trouble right now. 🙁
But, God can sue against RIAA. RIAA must stop bother people for right now. RIAA is fake and 100% fail. RIAA is suspect now and breaking the law by God. God did give free foods, music, drinks, etc to people. That was know as freedom sharing. RIAA must quit! No more RIAA in the future! We are freedom!!!
Exaggerations, etc.
Not only do many article writers exaggerate what the RIAA argues in their own defense and against the alleged defenders, very few who react in agreement with those exaggerations bother to actually read any of the legal documents that are available on the Internet. Intellectual dishonesty through exaggerations and omissions is a soft phrase for the hard reality of lying.
Little by little those who would have us believe that stealing through the use of technology is not stealing because of the use of technology are just looking for some kind of justification for illegal acts.
I believe I have heard or read most of the arguments for the illegal downloading of copyrighted music (among other intellectual properties). Most of them are:
1. The RIAA isn’t fair with the musicians, therefore it is OK to download copyrighted music files without paying for them.
2. Disney should not have the right to Mickey Mouse’s image for 95 years, therefore it is OK to download copyrighted music files without paying for them.
3. Musicians’ real rewards come from creating music, not from financial gain, therefore it is OK to download copyrighted music files without paying for them.
4. Music stores and other outlets charge too much, therefore it is OK to download copyrighted music files without paying for them.
5. Sharing music with friends by giving them copies should not be illegal, therefore it is OK to download copyrighted music files without paying for them.
6. No law is sacrosanct which means that laws against copyright infringement are not sacrosanct, therefore it is OK to download copyrighted music files without paying for them.
7. It takes virtually no effort or absolutely none at all for an artist to have copies made of his or her music, therefore it is OK to download copyrighted music files without paying for them.
8. No physical harm results from making unauthorized copies of music, therefore it is OK to download copyrighted music files without paying for them.
9. Congress has no business extending the periods for the retention of copyright ownership, therefore it is OK to download copyrighted music files without paying for them.
10. It really doesn’t matter if it is illegal or not, there is nothing immoral about it, therefore it is OK to download copyrighted music files without paying for them.
11. People break laws all the time, laws concerning highway speeds, laws concerning illegal possession of drugs and many other laws, and breaking those laws is worse than breaking copyright laws, therefore it is OK to download copyrighted music files without paying for them.
12. It is ridiculous to have to buy a CD with 20 songs on it when all that is wanted is one particular song, therefore it is OK to download copyrighted music files without paying for them.
13. Making copies surreptitiously without the consent and knowledge of the copyright holder hurts no one including the copyright holder, therefore it is OK to download copyrighted music files without paying for them.
14. Thomas Jefferson had serious doubts about awarding copyrights to creators, therefore it is OK to download copyrighted music files without paying for them.
15. Millions of people worldwide have already done it, therefore it is OK to download copyrighted music files without paying for them.
16. Laws and ethics taught in school won’t stop illegal downloads, only technology will and that technology has not yet arrived, therefore it is OK to download copyrighted music files without paying for them.
Let me add one more that I haven’t seen, but will be just as good a reason (or excuse) as the 16 listed.
17. Bush and Cheney lied about Weapons of Mass Destruction in Iraq and Clinton lied about having sex with Monica, therefore it is OK to download copyrighted music files without paying for them.
RIAA perfectly consistent
This well researched Wired.com article makes it pretty clear what is going on here on the ripping-cd’s-to-mp3’s issue:
“RIAA Believes MP3s Are A Crime: Why This Matters — Updated”
Re: RIAA perfectly consistent
Ray,
That article is well researched, but it doesn’t change that the Howell case is NOT about Howell ripping his own CDs.
I’m not sure how many times I need to point this out to you, but I am rather offended that you called me an “RIAA apologist”. I am clearly no such thing — and your stubbornness and unwillingness to either point out where Howell says what you claim it does or to back down doesn’t make you look good.