Print 114 comment(s) - last by Christopher1.. on Dec 24 at 8:25 PM

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 7:51:03 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.

"Vista runs on Atom ... It's just no one uses it". -- Intel CEO Paul Otellini
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