Recording Industry Deems Consumers Criminals for Copying Purchased Music Tracks to their PCs or Home Entertainment Systems for Personal Use

Recording Industry Tells Court (Again) That MP3s Are a Crime

By Ryan Singel December 11, 2007

Wired Blog Network

http://blog.wired.com/27bstroke6/2007/12/recording-indus.html


Does the Recording Industry Association of America think that you have the legal right to rip MP3s off CDs that you own? The evidence says the RIAA thinks you are a criminal if you make MP3s out of your late 80's hair metal CD collection, but probably won't sue you unless you send that MP3 to a friend or share it on the internet.

In a court filing (.pdf) that's being much discussed on the internet today, the RIAA appears to say no when asked that question by a judge in an Arizona suit against Jeffrey Howell for sharing songs on the Kazaa file sharing network.

The RIAA doesn't quite say MP3s ripped from one's own music collection are illegal, but instead refers to them as "unauthorized copies."

But the judge's question was plain:

Does the record in this case show that Defendant Howell possessed an "unlawful copy" of the Plaintiff's copyrighted material, and that he actually disseminated that copy to the public?

The answer was convoluted. The RIAA said the copies were unauthorized and that by putting the unauthorized copies in the Kazaa share folder, Howell was guilty of distributing copyrighted works.

The RIAA's website clarifies what it means when it says unauthorized copies.

If you make unauthorized copies of copyrighted music recordings, you’re stealing. You’re breaking the law, and you could be held legally liable for thousands of dollars in damages.

What does the site say specifically about ripping your CD or making a backup copy?

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.

That's reassuring. The millions of Americans who ripped their music collections to listen to on their home media centers and portable digital audio players are considered thieves by the Record Industry, but you can rely on the goodness of their hearts not to sue you.

Also remember that in the case against Jammie Thomas, the record industry was much clearer on how much they hate their customers.

Sony's BMG's anti-piracy officer Jennifer Pariser was asked by record industry attorney Richard Gabriel if ripping songs from a CD was legal. She said no -- that's "a nice way of saying, 'steals just one copy.'"
[See "Sony BMG Exec Tells Jury that Ripping a Single Song is Theft", By David Kravets, Wired Blog Network (10/2/07) at: http://blog.wired.com/27bstroke6/2007/10/sony-bmg-exec-t.html ].

I originally thought after reading the filing, that Ray Beckerman at Recording Industry vs The People and Boing Boing were overplaying this (as Mike Masnick at TechDirt thinks), but on a closer read, Beckerman was absolutely right when he broke this story.

I tried to call the RIAA for clarification, but their phone system, like the record label's business model, is stuck in the early 80s. There's no voicemail -- not even an answering machine -- for their press contacts. The phone just rings out.

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.

Recording Industry Goes Beserk & Forbids Consumers to Copy Legally Purchased CD Music Tracks to Personal Computers

Download Uproar: Record Industry Goes After Personal Use

By Marc FisherWashington Post Staff Writer

Sunday December 30, 2007

http://www.washingtonpost.com/wp-dyn/content/article/2007/12/28/AR2007122800693_pf.html

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing.
Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle.

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "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."

RIAA's hard-line position seems clear. Its Web site says: "If you make unauthorized copies of copyrighted music recordings, you're stealing. You're breaking the law and you could be held legally liable for thousands of dollars in damages."

They're not kidding. In October, after a trial in Minnesota -- the first time the industry has made its case before a federal jury -- Jammie Thomas was ordered to pay $220,000 to the big record companies. That's $9,250 for each of 24 songs she was accused of sharing online.

Whether customers may copy their CDs onto their computers -- an act at the very heart of the digital revolution -- has a murky legal foundation, the RIAA argues. The industry's own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it "won't usually raise concerns," as long as you don't give away the music or lend it to anyone.

Of course, that's exactly what millions of people do every day. In a Los Angeles Times poll, 69 percent of teenagers surveyed said they thought it was legal to copy a CD they own and give it to a friend. The RIAA cites a study that found that more than half of current college students download music and movies illegally.

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

As technologies evolve, old media companies tend not to be the source of the innovation that allows them to survive. Even so, new technologies don't usually kill off old media: That's the good news for the recording industry, as for the TV, movie, newspaper and magazine businesses. But for those old media to survive, they must adapt, finding new business models and new, compelling content to offer.

The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."

The industry "will continue to bring lawsuits" against those who "ignore years of warnings," RIAA spokesman Jonathan Lamy said in a statement. "It's not our first choice, but it's a necessary part of the equation. There are consequences for breaking the law." And, perhaps, for firing up your computer.