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Fair use under direct attack in Atlantic v. Howell

In a legal brief filed for Atlantic v. Howell, the RIAA once again stated its distaste for users who copy CDs for personal, private use.

The RIAA wrote that “it is undisputed that Defendant possessed unauthorized copies” – referring to the Howell’s collection of mp3 files made from their own CDs – and noted that “once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies.”

The Judge’s question was, “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?”

Similar sentiments were heard in testimony leading up to the conclusion of Capitol Records v. Jammie Thomas, where Sony BMG’s head of litigation equated Fair Use to stealing and testified that copying music for personal use is just “a nice way of saying ‘steals just one copy.’”

Admittedly, the wording in its Atlantic v. Howell brief is vague and its exact message unclear. Judging purely on the statements expressed in its brief for Atlantic v. Howell, opinion seems divided on the true intent: does ripping music to a computer for personal use produce an unlawful copy? Or is the act of placing said music into a shared folder that makes it unlawful? As the RIAA chose to use the word “unauthorized” instead of “unlawful,” interpretation is further complicated; “unauthorized” and “unlawful” have two very different legal definitions, and many think that the RIAA did not even answer the Judge Wake’s question.

The piracy section on the RIAA’s website offers further confusion, with its legal section making no mention of the legalities of “ripping.” The closest analogue to ripping would be directly copying music to a CD-R, which says that while users have “no legal ‘right’” they can generally avoid legal confrontation by making sure said music is only copied for personal use.

An official response from the District Court will likely hinge on the RIAA’s distinction between “unauthorized” and “unlawful,” and whether or not it feels Howell is liable for ripping the CDs themselves, or placing them in a p2p client’s shared folder.

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RE: Any 1 who makes ripping software is liable...
By amanojaku on 12/17/2007 7:15:46 PM , Rating: 5
If the RIAA tells me I can't copy my music to any format of my choosing for personal use (meaning not for anyone else) then my answer is clear: I'm not buying any more of your crap. Which isn't too hard considering today's music (no offense meant to those who like it.)

Here's my take on it: About a year ago I bought a stack of CDs from Barnes and Noble. I played them once and loved them all. Then I shelved them for two months and did other things. I then decided to build a music jukebox using iTunes and a RAID array. I pull out all my music and copy everything, even stuff I hadn't listened to in years. One of those CDs in that two-month old stack wouldn't play. I thought it was my reader, so I popped it into another machine. Zip. Four machines later I was pretty sure this disc was toast. I contact B&N and ask if I can get a replacement, to which they replied "no, it's been more than 30 days."

Now, I could have raised a fuss, but it's only one CD. Imagine if someone stole all my music (unlikely, with all the OTHER stuff around, but I'm just sayin'...) That means I'm responsible for buying over $10,000 worth of music that I ALREADY owned? Piss off! Should I trust an online site to keep a record of all the music I purchased in case I need to download it again? Heck no! Sites get hacked all the time so why should I trust that to be safe? Give me the option to do my own backup! I have no problem understanding that music transfer is illegal (I work at a software company; data is our lifeblood,) but BACKUP should be my RIGHT!!!

By sxr7171 on 12/18/2007 3:54:36 AM , Rating: 3
I am in full agreement with you, in fact every CD I buy (yes, I still buy them but the RIAA's arrogance I want to stop) get's ripped into Apple Lossless and goes on my iPod where it is listened to primarily. They also exist in Apple Lossless format on 2 computers. I really doubt the RIAA has a problem with that (if they did I would pirate every piece of music I would otherwise buy just to stick it to the RIAA). What happened here is another DT author trying to grab your attention with a false headline. It's not like it's never happened before.

By DOSGuy on 12/18/2007 9:42:55 AM , Rating: 2
I think there's a class action lawsuit in the unplayable CD situation you described. Obviously you cause the copyright holder no damages when you make a backup of your music for personal use, so what is the real reason why organizations like the RIAA/MPAA don't want people to make backups? They don't have the right to assume that you're going to distribute your backups because you're innocent until proven guilty, and there's already a presumption of guilt built into the system: all blank media have a tax that compensates the industry for the piracy that may be committed with that media.

I'm incredibly careful with my CDs and DVDs, but they still get scratches on them. It is a fact of life that these optical disks will scratch during careful, normal use. The industry is depending on you to scratch your discs and need to replace them! Remember a few years ago when there were companies making "bullet proof" discs that were made of such hard plastic that they could only be damaged intentionally? Why isn't the industry using that plastic yet? Because they want your discs to become unplayable!

I submit that the music/movie/game industries are intentionally selling a defective product to force consumers to replace their discs. The technology exists to render discs unscratchable during responsible use, but has taken no steps to adopt that technology. They create license agreements that forbid backups under a presumption of guilt regarding the use of those backups to force consumers to use the original media until it becomes unreadable.

There's a lawsuit in this. Until the industry eliminates the need for backups by creating media that doesn't degrade through normal use, I'll backup whatever I damn well please. They're selling a defective product!

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