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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 Screwballl on 12/19/2007 12:46:26 PM , Rating: 2
The point that RIAA is making is a gross over generalization that ripping leads to sharing, if we take out the legal "fair use" then the sharing will stop.

Unfortunately they are so dumb that they actually believe this crap. I have several GBs worth (8GB+) of "fair use" ripped music (both mp3 and FLAC) but at no point am I sharing it with anyone else. Not on CDs or file sharing or anywhere else. According to RIAA, I am a criminal because I did not buy these mp3s from an authorized source. Nevermind that half of them are public domain or was ripped from a disc that contained no copy protection. The other half may have been but as I still have most of the CDs, I am entitled to "fair use" for my own personal enjoyment and at no point does the music leave my possession.

The moment I get a DMCA notice or something of the like then all my media goes under PGP 256bit encryption. If they can't access it then they can't pursue legal options since my collection is not shared (except to other computers on my own home network that is only used by myself and my wife, no wireless connection in my house).


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