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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 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?


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