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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 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.


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