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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 rushfan2006 on 12/18/2007 10:27:59 AM , Rating: 2
I've decided after some thought and the RIAA rattle off at the mouth for years on end about copyright issues like this, its pretty much like the speed limit. Yeah technicially its illegal to drive over the speed limit, but pretty much anyone who has had a driver's license (well assuming everyone that drives has one is kind of a fantasy right there...but work with me here!) for more than a month has at least once driven faster than the speed limit. Its a kind of "crime" of you are only wrong if you get caught kind of think, and society doesn't really fault you much (as long as you didn't kill anyone, wasn't drunk doing it etc.).

Ripping music, using p2p sites, etc. pretty much like the speed limit -- at one time or another nearly anyone who is "hip" enough to search and use the Internet has probably downloaded a song or two (that they didn't pay for) or ripped a CD.

I think that the RIAA should chill -- the rule should simply be "as long as the music being listened to was paid for by at least one of the listeners AND they are not charging or in any way profiting off of its performance" its ok.

After all, unless you are a spaz - you are going to constantly have free performances of your DVD or CD collection 24/7/365.

"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein
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