Music Industry Lawyer Claims All Music Reproduction Technologies (MP3, IPOD, etc.) Illegal, Notwithstanding 'Fair Use' by Consumers

Lawyer: Ripping MP3s Illegal, Grounds for Lawsuit

Monday , December 31, 2007

FoxNews

http://www.foxnews.com/story/0,2933,319276,00.html

You, too, could be sued for thousands of dollars by the major record companies — even if you've never once illegally downloaded music.

That's because at least one lawyer for the Recording Industry Association of America, the Big Four record companies' lobbying arm and primary legal weapon, considers the copying of songs from your own CDs to your own computer, for your own personal use, to be just as illegal as posting them online for all to share, according to a federal lawsuit filed in Arizona.

Jeffrey Howell of Scottsdale stands accused of placing 54 music files in a specific "shared" directory on his personal computer that all users of KaZaA and other "peer-to-peer" software could access — pretty standard grounds for an RIAA lawsuit.

However, on page 15 of a supplemental brief responding to the judge's technical questions about the case, the RIAA's Phoenix lawyer, Ira M. Schwartz, states that the defendant is also liable simply for the act of creating "unauthorized copies" — by ripping songs from CDs.

Schwartz is a partner in DeConcini McDonald Yetwin & Lacy, the family firm of former Sen. Dennis DeConcini, R-Ariz.

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.

"I couldn't believe it when I read that," New York lawyer Ray Beckerman told the Washington Post. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

In other words, according to Schwartz's logic, every single person who's ever "ripped" a CD for portable listening on an iPod or other MP3 player could be liable for astronomical damages.

Apple itself estimated earlier this year that only 4 percent of music on iPods worldwide had been purchased through iTunes, implying that most of the rest had been ripped from CDs.

In October, Jammie Thomas, a Minnesota single mother, was ordered to pay the record companies $220,000, or $9,250 for each of 24 songs a jury found she'd shared online.

The RIAA's own Web site is more conciliatory, but implies that the organization reserves the right to go after music "rippers" should it change its mind.

"If you make unauthorized copies of copyrighted music recordings ... you could be held legally liable for thousands of dollars in damages," it plainly states before adding that "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 [or] the copy is just for your personal use."

However, Schwartz isn't the only RIAA bigwig who's recently implied that those concerns may be raised more often.

Copying a song you've paid for in CD form is "a nice way of saying 'steals just one copy,'" Sony BMG top lawyer Jennifer Pariser testified during cross-examination in the Jammie Thomas case in early October.