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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 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.

"Nowadays, security guys break the Mac every single day. Every single day, they come out with a total exploit, your machine can be taken over totally. I dare anybody to do that once a month on the Windows machine." -- Bill Gates
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