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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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By psychobriggsy on 12/17/2007 7:20:04 PM , Rating: 2
Hmm, choice for the RIAA:

1) CD is a physical product - you are allowed to do whatever you want with it once you have paid for it. That includes lending it, reselling it, etc.

2) You've licensed the content on the CD - you can do anything with the content from that CD within the terms of the content licence (unspecified at time of purchase) which will therefore be, in any sane person's definition - in that person's residence, on their person, and in the areas that they are present. Basically what people currently do with CDs now and with music since the gramophone came out.

I don't see the rich people that the RIAA supports getting poor. The bands are just tools to make those rich people richer, nothing is ever done *for* them, unlike their claims.

Support the bands you like - see them live and buy their merchandise.

By cmdrdredd on 12/17/2007 7:45:37 PM , Rating: 2
There are a few artists who independently release their music on a website hosted by them at their expense. They then allow the listener to pay whatever they feel is worth paying. Recently Radiohead did this if I'm not mistaken. The idea was, people WILL pay for your music if you let them do it on their terms. In fact, many people paid what it would cost for a normal CD in the store (before tax). A few people decided to pay nothing and just take it though. What does this show? There is a market outside of buying a CD at B&M stores. Of course we knew that thanks to iTunes, MSN Music, Zune Marketplace, Xbox Live, and Amazon. This is one time where I side firmly with Apple and Microsoft. They have software that can rip a CD to a digital music device (zune & iPod) and they both support artists by offering an alternative to a CD with a pay per song download. It can go both ways. Offer a convenient way to take your music on the go and also offer a way to obtain new music and promote aspiring artists and new top hits by offering them up for purchase and digital download. For their conrinued support of digital music (along with all the phone manufacturers and various Mp3 players) I am firmly behind them. Something I'd never have thought I would be saying.

“And I don't know why [Apple is] acting like it’s superior. I don't even get it. What are they trying to say?” -- Bill Gates on the Mac ads
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