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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 cmdrdredd on 12/17/2007 7:48:12 PM , Rating: 0
Right, but when you rip a CD it goes to your music folder by default. Anyone who comes by can listen to that music unless you lock the account all the time. Given the fact that many people don't lock their music out, they are always going to be sharing it.


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
quote:
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
lol!

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
quote:
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.


"We don't know how to make a $500 computer that's not a piece of junk." -- Apple CEO Steve Jobs

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