Unbelievably standing up for the RIAA (this one time)
Yesterday, Marc Fisher of the Washington Post wrote a piece entiled "Download Uproar: Record Industry Goes After Personal Use." (Free registration might be required to view.)
One of my favorite bloggers, Daring Fireball's Jon Gruber, referenced this briefly yesterday. I've seen this crop up on lots of other blogs and various media outlets, and the story is always presented in basically the way that Fisher presented it:
[I]n an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.The problem is that's not what the brief says at all.The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.
I was as outraged as you probably are when I first read about this brief a few weeks ago. So I looked up the Atlantic v. Howell brief. It was easy to find through Google, but here's a link for you: Plaintiff's supplemental brief in support of their motion for summary judgment pursuant to court's order of October 3, 2007. (PDF format).
Read it for yourself. When you read the brief it quickly becomes clear this isn't a case about converting CDs to MP3s, but a case about someone who plopped his converted MP3's into the Kazaa file-sharing service. What the brief actually says is:
Defendant admitted that he converted these soundrecordings from their original format to the .mp3 format for his and his wife’s use. . . . Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs. Moreover, Defendant had no authorization to distribute Plaintiffs’ copyrighted recordings from his KaZaA shared folder." (p. 15)Note the "and" in that second sentence. This is boolean logic at its simplest. Not once in this brief -- not once -- is it even remotely implied that "copy[ing] their CDs onto their computers," as Fisher said, is an illegal act in and of itself. The entire case revolves around taking those MP3s and making them available to other people via the Kazaa file-sharing service. Had Howell just converted his CDs to MP3s and dropped them into a location on his computer that wasn't shared with millions of other users, we might assume that there wouldn't be a lawsuit taking place.
In other words, in the Atlantic v. Howell brief, the lawyers for the RIAA are not objecting to a user copying CDs onto a computer, but to a user putting the ripped audio files into a shared folder that he knew would distribute it via the Kazaa file-sharing service -- precisely what the RIAA has been objecting to for nearly a decade.
I'm no apologist for the RIAA; I loathe their policies and their tactics. But loathing the RIAA isn't an excuse for letting sloppy, misleading, and irresponsible reporting go unnoticed. I haven't seen any coverage of this case that has actually reported the full context, i.e. that the RIAA was objecting to the converted files in question being shared over the Kazaa service.
There's nothing new -- or newly nefarious -- here. The only new thing here is that the defense lawyers are being much more clever this time around about taking language about "unauthorized copies" out of context and spinning it to their advantage in the media and blogosphere. And the media and bloggers are eagerly taking the bait without doing the simple legwork that any resepectable journalist, blogger, or thinking person should do.
Comments
This is all quite unfortunate.
I wrote a rant about this article a couple of days ago trusting that the Washington Post, Marc Fisher, and their fact checking sleuths were correctly representing the situation.
There's still no doubt the RIAA is a shoddy organization set up by desperate businesses that seem to have no trouble treating their customers like criminals, but I also agree that that's no justification for hack journalism.
In my defense, my rant was on a Facebook post (I ain't no professional) but now I know I can't go trusting anything I read without doing a little digging of my own. Same old story.
Peace.
Lee
Posted by: Lee Dale![[TypeKey Profile Page]](http://www.tenreasonswhy.com/weblog/nav-commenters.gif)
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January 2, 2008 10:01 PM
Disclosures -- IANAL, this is not a legal opinion. On the other hand, I work in litigation and see a lot of argument, especially in IP litigation, so I think I know how to parse it.
You can't read the RIAA's argument the way you want to. A copy is either authorized or it is not -- you can't buy a book that is an authorized copy, until you put it on a library shelf. The RIAA is indeed arguing that the copies are unauthorized. The circumstances are simply them vilifying the alleged unauthorized copies.
Creating unauthorized copies and facilitating unauthorized copies are two different torts, two different charges. It is the difference between murder and accessory. The RIAA is alleging that he both facilitated and made unauthorized copies (by virtue of ripping the CDs.) It is the difference between (b) and (c) in 17 Sec 506 (A)(1):
Posted by: Phelps![[TypeKey Profile Page]](http://www.tenreasonswhy.com/weblog/nav-commenters.gif)
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January 3, 2008 03:04 PM
I like what you have to say and would like to use it in a piece on the reaction to the original news. I will of course include a link back.
I hope that is OK
Laurence Eastham
Posted by: laurence![[TypeKey Profile Page]](http://www.tenreasonswhy.com/weblog/nav-commenters.gif)
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January 4, 2008 07:36 AM