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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 umeng2002 on 12/17/2007 7:41:12 PM , Rating: 5
“once Defendant converted Plaintiffs' recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies.”

Not OR, AND!!!

They didn't say making mp3s for personal use is unauthorized. They said making mp3 to share with many anonymous users is illegal.

By cmdrdredd on 12/17/2007 7:51:03 PM , Rating: 5
Forgot to add...

By that logic you can't even playback a CD unless you wear headphones because you are sharing the music with everyone who is within listening range. Ridiculous I know, but it's basically the same thing. Oh and you can't watch a DVD with your friends because that would be considered "Public exhibition" which is outlined in the warning at the beginning of all the DVDs currently produced.

By Christopher1 on 12/18/2007 8:29:13 AM , Rating: 5
Actually, it is true. Don't you remember the teachers who were sued for showing a nature movie in their classrooms 14 years ago? That happened to my teacher, and I was NOT happy about it at all when I heard that had happened to her.

We need to expand fair use to say that public performances of things ARE legal unless (and this is the catch) you are charging admission of some kind of see the movie, hear the music, etc.

Absent that 'pay to watch/hear'..... it should be legal.

By Spivonious on 12/18/2007 10:55:24 AM , Rating: 4
Ah, but your teacher's case is very clearly supported under the Fair Use clause, as it was purely educational.

By Christopher1 on 12/24/2007 8:25:46 PM , Rating: 2
Didn't get her out of it. She brought that up in court, and still got socked with a 1200 dollar judgement against her, because the judge didn't see that part of the law.

The judges in this country cannot know every single bit of every single law that is on the books.... that is why I say that laws should say what is PERMITTED, instead of what is illegal.... that would be shorter and more to the point in most cases.

By onwisconsin on 12/17/2007 9:23:21 PM , Rating: 3
Don't forget by talking to friends about the movie, you are illegally copying the movie and sharing it....

By GaryJohnson on 12/17/2007 10:57:05 PM , Rating: 5
What if I remeber part of the movie and play it back in my head at a later date, after I've sold the movie, returned it to the place I rented it from, or saw it in a theatre.

My brain violates the DMCA!

By feraltoad on 12/18/2007 5:59:01 AM , Rating: 5
That's why the RIAA recommends DRM Bytes Breakfast Cereal. The white marshmallows are Trilafon (anti-nausea drug) so you can stomach their bulls#it, the blue ones are Valium so you don't care, and the green ones are, well I don't know, but there delicious.

"Oh No! The kids are after me over-valued product they are no longer willing to buy on me out-moded sales model!"

By 1078feba on 12/18/2007 10:28:43 AM , Rating: 2
I don't think you're too far off on that scenario. When it comes to the RIAA and the like, the one thought I keep in the back of mind is that the RIAA sees every single use of copyrighted musical material as a missed revenue opportunity.

After one understands that, every one of their actions make sense from their point of view. "Draconian" as an adjective merely scratches the surface.

By rcc on 12/18/2007 2:10:19 PM , Rating: 3
lol, your brain violates common sense, so why not the DMCA?

: )

By sxr7171 on 12/18/2007 3:39:21 AM , Rating: 4
Listen you both have a point. Initially when I read the headline my response was going to be directed at the RIAA and it really was going to be unmentionable. However let's cut through the crap here. There is a difference between playing music for friends and leaving it shared where other people can copy it to their computers. The headline is pure sensationalism and is a cheap shot at getting people to read his article. I mean if ripping were "unauthorized use" then there is no legal use for an iPod (or other DAP, I mention iPod because it pioneered the "rip and carry" concept) for all intents and purposes. The RIAA would have fought the fundamental concept of a DAP in that case.

Yes, the RIAA is a draconian organization that is among the worst cartels in the world and I never thought I would take it's side against anything but the one thing I hate more is an author just putting up a blatantly false headline for the sake of readership. It just reeks of piss poor journalism. Well, I guess the argument here at DT is that since this is a "Blog" we are not to expect any standards here, just a bunch of words on a screen. Don't get me wrong either, I have grown to love DT in fact I read it everyday and have made it my source for tech news, but there is no excuse for a blatantly false title.

By Denigrate on 12/18/2007 11:40:21 AM , Rating: 2
IPod DID NOT pioneer the rip and carry concept. They merely stole the idea and marketed it better than the original developers.

By Cerberus29 on 12/18/2007 12:34:47 PM , Rating: 2
thats exactly what makes me hate apple. They make lots of people think that they had the first this and the first that.

When if you actually look at it, some other company has had the feature for ages.

Like the iPod video which was supposedly the first video compatible mp3/mp4, which it wasn't.

I am really getting annoyed at the RIAA and the british version, they really need to accept that everything is going digital and that ripping CDs and even sharing them over p2p is never going to stop, ever. As soon as someone brings out a secure new DRM, someone else will break it. By the logic of computers and the way they work you can never really have a 100% secure file/system etc.

I really do think a mass boycott or mass protest is in order to show the RIAA (and british one) that we, the consumers, aren't going to put up with this kind of rubbish. Soon you won't be able to talk at all as you'll be breakig copyright as the words you speak have been used in some artists song and is therefore breaking copyright.

Something needs to be done.

By Silver2k7 on 12/22/2007 11:13:35 AM , Rating: 2
" I mention iPod because it pioneered the "rip and carry" concept)"

I think Diamond Multimedia was first.. atleast they got sued to bancrupcy for selling mp3 players.. that company ressurected this year or atleast the name..

As I recall there where lots of small companies making mp3 players before Apple.

By Oroka on 12/17/2007 10:08:31 PM , Rating: 2
In Canada, that would clearly be legal. If you didnt place those files in your shared folder, they were placed there automatically, then you are not expressidly sharing the file and you are not doing anything illegal, it is your computer automatically sharing these files.

While I support buying music, and the RIAA have the right to protect thier investments, sueing customers based on antiquated laws and social norms is not the way to protect thier products.

WMP automatically rips your CDs into a digital format, no action on your part needed. Shouldnt M$ be held accountable for enabeling digital copies of music, and shouldnt P2P programs be held accountable for automatically sharing your music folder?

If my mom with her limited computer skills puts her Abba CD in her computer to play it, and a digital copy is made without her interaction, is she a criminal? Did she commit a crime?

By True Strike on 12/19/2007 2:37:22 PM , Rating: 2
This is an option that can be disabled. Tools>Options>Rip Music tab>Checkbox "Rip CD when inserted". I am sure since this can be disabled through a simple checkbox that Microsoft could have any lawsuit against them redirected at the user.

By Fritzr on 12/20/2007 9:40:26 PM , Rating: 2
If the default is changed to 'Do NOT Rip CD when inserted' then MS would be safe. MS already lost the right to include Java as an OS component when they set the defaults on MS-Java to enable all the Windows extensions. MS could have gotten away with distributing a Windows only version of the all-platform language if they had required users to turn on the proprietary extensions before using them.

As it is MS defaults to 'Rip CD and illegally share the MP3'. Wonder when the RIAA will notice this. After all the preset default that is selected by the MS-Installer is not the choice of the user who does not review all of the user modifiable settings.

By Spuke on 12/24/2007 2:40:13 PM , Rating: 2
As it is MS defaults to 'Rip CD and illegally share the MP3'. Wonder when the RIAA will notice this.
They'll never go after Microsoft. It's not that they wouldn't have grounds to do it, it would more than likely cause more damage to the industry.

What if Microsoft started their own music and movie companies? They have more than enough money to setup their own distribution networks. This would cut out the entire movie and record industry. Offer the artists and actors more money to sign, setup digital distribution and the RIAA and MPAA would die a certain death.

By eye smite on 12/17/2007 10:31:27 PM , Rating: 4
All I can do is sing everytime I see something like this, and let me tell you what it is. Do you remember that old village people song YMCA? You reword it to " It's fun to violate the DEEEEEE M C AAA". Now if someone could come up with some other words for the rest of the song it would be appreciated. I've been violating the dmca since it came out and don't care what they say. I paid for it, it's mine, I'll do what I want with it.

By Proteusza on 12/18/2007 4:25:03 AM , Rating: 3
I hope YMCA isnt copyrighted, otherwise you are going to prison and may be liable for a $1 Billion Billion Dollar fine.

Do you know how hard it is for the record companies to leech off artists so they can buy private islands and customized Boeing 747s? When you lead a life as difficult as they do, you can make jokes about the situation.

By 1078feba on 12/18/2007 10:30:11 AM , Rating: 2
$1 billion billion = $1 kabillion

By Cerberus29 on 12/18/2007 2:18:49 PM , Rating: 2

Thats the funniest thing I've heard in a while.

Really did make me laugh.

By Donkeyshins on 12/18/2007 2:31:28 PM , Rating: 2
Lucky for you, parody is protected speech under 'fair use' laws, so go for it!

By probedb on 12/18/2007 4:15:52 AM , Rating: 2
No it doesn't, it goes where I tell EAC to put it.

By DragonMaster0 on 12/18/2007 4:14:53 PM , Rating: 2
they are always going to be sharing it.

Only if you use sharing software in the first place. Otherwise, even if it's in your music folder, it's not shared.

By marvdmartian on 12/19/2007 12:03:52 PM , Rating: 2
Wow. Nothing against you personally, but what sort of crappy ripping software are you using??

1. My software has settings, where I determine where the end result (my ripped mp3 file) ends up. In ~8 years of ripping music from my cd's, it has always gone where I told it to go, not to any default location.

2. My p2p software, if I were foolish enough to want to share music or videos (internet suicide these days, imho), also has settings, which allow me to determine which folder or folders I want to share.......and no others.

3. If you're so foolish to rip your music to your shared folder, and expect anyone with any knowledge about computers to believe that you did it mistakenly, and weren't aware of the fact that you were sharing it, then you deserve to lose whatever amount of money the court later decides you owe the RIAA.

Bottom line........if you share your music, you're breaking the law. If you're breaking the law, and aren't willing to accept the penalty, then you shouldn't be taking the risk. This guy was dead wrong, and there's really no defense against what he did.

'Nuff said.

By mindless1 on 12/21/2007 5:26:33 AM , Rating: 2
You started out good then showed your clear bias.

No, the guy wasn't "dead wrong". Law is not about right or wrong, it's about innocent or guilty. Always has been.

Basically you already had a bias in your mind and deliberately argued towards it. What a shame you go out of your way to be a hater, when the courts were already taking care of the legal issue without any further hate from us necessary, nor serving any particular purpose at all. It's kinda like you want an excuse to hate.

BTW there is a defense against what he did, which is his reason for doing it. What there is not, is a defense against the CHARGE when proven true.

By walk2k on 12/17/2007 8:15:22 PM , Rating: 2
Placing something in a "shared folder" I assume means p2p since it's perfectly legal to share music amongst 1 household (ie a private LAN).

Also, minor point, Fair use does not include making copies for archival or convienence (format conversion) BUT that right is also guaranteed by copyright law (it's just erroneously attributied to "fair use" but that's ok we know what you mean...)

By cmdrdredd on 12/17/2007 8:19:13 PM , Rating: 2
Then by the fact that it's legal to share music in your house, how is it illegal in their eyes to rip a CD to put it on an Mp3 player?

I don't know the specifics of the case, but is there proof that this person was uploading or allowing downloads of the music to outside parties? He could have put it in a share for his LAN.

By walk2k on 12/17/2007 8:33:43 PM , Rating: 2
I should say, it's legal to share the music, so long as only 1 copy is being used at any one time. Technically I guess if two people are listening to the same album in different rooms that might be infringing, but of course nobody would actually prosecute that... As long as you own the CD you can share it with your immediately family/household/etc.

Sharing with the entire world on the internet is quite different.

Doesn't matter what the RIAA says though, copyright law allows (1) backup copy for archival purposed AND format conversion for the sake of convienence (was originally meant to refer to things like putting your 12" records on cassette tape to listen in the car, but surely would be interpreted to mean ripping a CD to listen on your ipod/etc)

By Christopher1 on 12/18/2007 8:34:15 AM , Rating: 1
Well, they should make it very clear that sharing music and making copies for personal use with family members in your own home or a home you own and live in is fine, but NOT allowing people to download music over the internet.

Personally, I think that it is just time to have a base levy on internet service like they have in France (I think that is the country) where the media makers are compensated for any 'illegal' sharing that occurs.

I also have to say that I do not share my music folder in Vista, in fact I have DELETED Sharaza, Limewire, EMule and a few other applications from my computer because I didn't trust that they wouldn't share those folders without my permission or have a virus that targets them and makes them share my whole 'My Documents' directory.

By 1078feba on 12/18/2007 10:42:47 AM , Rating: 2
Normally don't buy into the "slippery slope" argument, but when it comes to government attempts to gain access to my wallet, I make a universal exception.

Allow the gov to levy such a, uuhhh, levy, and within picoseconds, you will have legislators drafting bills to tax all purchases on the web. Slippery slope indeed.

Was recently reading an industry mag that relates how Radiohead is doing with their totally free download of their latest album. States that the band has already made significantly more by doing it this way than through a label. As of the printing of said mag, the "price" paid, you can donate when you download if you so choose, was $6.00, or rougly a third of what you would expect to pay at any store or through iTunes, etc. Really goes to show you how much goes to ensuring that the label execs continue to be able to drive Bentleys and Aston Martins.

Can anyone help me out here? The moratorium on internet taxation was recently extended, IIRC. To when, exactly?

By MonkeyPaw on 12/17/2007 8:20:15 PM , Rating: 2
I noticed that, too, and I think you are right, so long as they are talking about some kind of public sharing.

Curiously, this article actually seems to be written backwards in a very key spot. Typically, we write in a "question-answer" format, not an "answer-question" format. IF you swap two statements in this article around, it reads like this:


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?”

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.”

It sounds to me like the RIAA is saying that once a compressed audio track is made available via sharing, that they do not view this file as legitimate, since it is being made available to others without authorization. I don't think it has anything to do with compressing audio into any particular format--it's just saying that once you create the file AND share it, you are breaking the law, whether you legally purchased the music or not.

By numbnuts on 12/18/2007 2:31:21 AM , Rating: 2
So where does this leave Windows Media Center & Home Server ?

I wonder if any of these RIAA people actually own any disc's, I've got >1000 having them ripped on to my PC is only way of managing them, and finding the one you want (the discs themselves are in boxes in the attic).

I have my CD's in a folder on my hard drive, Windows is "sharing" my music on my network to my Xbox360 and my laptop in separate rooms, so if anyone other than me access the music am I now breaking the law ?

This whole thing is a load of nonsense. Yes there is illegal sharing going on in the world, but killing consumers & holding back technology isn't going to fix it.

By JustTom on 12/18/2007 11:02:30 AM , Rating: 2
Read the brief, the problem here is that Howell put the MP3s in his Kaazaa shared folder, where a RIAA spy company accessed the files and downloaded 11. The point is made numerous times that the problem was ripping the music tracks and making them accessible for downloading. This case, at least, is not one of hypothetical file sharing the RIAA spy company actually downloaded music from the Howell's Kaazaa shared folder.

So it is my guess that unless you allow people to copy your Media Center files over a p2p network the RIAA gestapo will not be kicking down your door.

By TomCorelis on 12/17/2007 8:48:51 PM , Rating: 2
Yes, I agree with you; their specific statement says indeed "AND".

HOWEVER , many people -- including myself, on the first pass -- interpreted it as them condemning CD ripping as "unauthorized." Lexically, their brief tries as hard as possible to shift the focus on ripping part, not the shared folders part, and actually Wired spent a good amount of time analyzing that. Further, if you take Pariser's comments into account, one might think that RIAA tacked on the 'shared folder' part in the last minute. Even further, note again how they use "unauthorized" instead of "unlawful": Even the RIAA doesn't authorize CD ripping -- and their stance on it is quite clear if you look around -- and I think they tried to squeeze that in as much as possible. And, one more time, note the lack of the word "unlawful."

RE: Everyone forgets what AND means including Tom Corelis
By TomZ on 12/17/07, Rating: -1
By TomCorelis on 12/18/2007 2:22:58 AM , Rating: 2
At face value, you're right. But it's little things like this that help people predict the RIAA's larger direction and intentions.

By sxr7171 on 12/18/2007 4:09:57 AM , Rating: 2
Well, fair enough. You might have a point that the RIAA wishes the iPod didn't take off and people didn't start ripping all their legally purchased music to their computers for use on their DAPs, but if wishes were horses...

Now it is too late, and the tides have turned. This isn't the 80s where you pretty much HAD TO buy your music (or dub it with two tape decks). They were on board when the iPod came out, many of their members were in bed with Apple, hence the iTunes store.

They just seems like a wounded animal that attacks anything these days and the sad thing is that people do get "bitten" by this sick, rabid dog that is the RIAA.

They just keep crying about a bygone era and wish that technology didn't appear that makes music more portable and transferable. Well, it's happened and it's partly their fault. Get with the times and offer us reasonably priced lossless downloads, or even CDs at reasonable prices. Give us options and maybe you'll start flourishing again. The old business model simply won't work anymore, just give it up. There's only so long you can cry and cry about milk that was spilled in the 90s.

All this makes me much less inclined to buy music anymore. Basically your article doesn't tell us anything we didn't already know.

By clovell on 12/18/2007 11:00:56 AM , Rating: 2
Don't underestimate lawyers' ability to screw the general public, Tom.

By umeng2002 on 12/17/2007 10:07:03 PM , Rating: 2
Yes, I see what you are saying.

One side tries to mix simple backup and compression with massive p2p file sharing in order to try and stop legal copying and try and force a pay per listen scheme.

The other side tries to mix up the RIAA's attempt to stop massive p2p file sharing with trying to stop simple archiving and personal use in order to continue pirating.

As long as the RIAA keeps putting on the qualifier of sharing the music on a larger anonymous scale, I don't have a problem with them taking CHRONIC seeders to court. I hate them as much as the next human, but they do have a right to stop REAL pirates.

Frankly, they should just sell listening rights not attached to any physical medium. You could then get the content anyway you want.

By Proteusza on 12/18/2007 4:28:16 AM , Rating: 2
Quite frankly I dont see how they can legally enforce their will that it is illegal to copy your own CDs. Oh wait they can through lobbying, its so easy for them and they do it all the time.

In any case, if I rip CDs to my shared folder, I'm not forcing anyone to copy them. What if I go on a holiday to Jamaica and I want to listen to the music that I am legally entitled to? Is that not a good way of using P2P services?

Now, if someone else downloads my music, thats their problem. How do I know they dont have an appropriate license? Its like saying you cant keep your music CDs in your house because someone might break in and steal them, so you had better leave them with the record company.

By JustTom on 12/18/2007 12:52:17 PM , Rating: 2
Its like saying you cant keep your music CDs in your house because someone might break in and steal them, so you had better leave them with the record company.

The situations are not even remotely analogous. First, when someone copies files from a shared p2p folder they are not breaking into anything, you invited them; second when files are copied you do not lose access to them, when CDs are stolen you do. RIAA contends Howell KNEW files were being copied from his shared folder and allowed it to happen. However you may feel about the RIAA and its tactics this is a clear violation of US law.

By Pandamonium on 12/18/2007 9:25:30 PM , Rating: 2
You assume that reporters write and think as logically as programmers. This is false.

By smokedturkey on 12/18/2007 11:55:50 PM , Rating: 2
Fook RIAA. As a matter of fact, FOOK all big corps. They brought it upon themselves. Piracy FOREVER!

By Screwballl on 12/19/2007 12:46:26 PM , Rating: 2
The point that RIAA is making is a gross over generalization that ripping leads to sharing, if we take out the legal "fair use" then the sharing will stop.

Unfortunately they are so dumb that they actually believe this crap. I have several GBs worth (8GB+) of "fair use" ripped music (both mp3 and FLAC) but at no point am I sharing it with anyone else. Not on CDs or file sharing or anywhere else. According to RIAA, I am a criminal because I did not buy these mp3s from an authorized source. Nevermind that half of them are public domain or was ripped from a disc that contained no copy protection. The other half may have been but as I still have most of the CDs, I am entitled to "fair use" for my own personal enjoyment and at no point does the music leave my possession.

The moment I get a DMCA notice or something of the like then all my media goes under PGP 256bit encryption. If they can't access it then they can't pursue legal options since my collection is not shared (except to other computers on my own home network that is only used by myself and my wife, no wireless connection in my house).

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