December 2007

I’ve got to hand it to Matt Drudge. He’s a born sensationalist. This morning, he took a brief diversion from his usual muckraking political headlines to write an equally muckraking one about a case I told you about a couple of weeks ago.

Download Uproar: Recording industry says illegal to transfer music from CD onto computer….

…screamed the headline, linking to a Washington Post article titled, “Download Uproar: Record Industry Goes After Personal Use.” An excerpt (emphasis in original):

[I]n an unusual case in which an Arizona recipient of an RIAA [Recording Industry Association of America] 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 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.

Shocking, isn’t it? If only it were true…

Just to be clear, I’m assuming that the brief referred to in the story is the 21-page supplemental brief filed by the RIAA in Atlantic Recording Corporation v. Pamela and Jeffrey Howell, which I wrote about earlier this month. (Note: The reporter confirmed that was the brief to which he was referring.)

In Stop, Thief! Before You Rip That CD… I told you that music and tech bloggers were in an uproar about a supplemental brief the RIAA (a trade organization for the recording industry) filed December 7 in a case called Atlantic Recording Corporation v. Pamela and Jeffrey Howell. A couple was sued for illegally transferring digital music files to a peer-to-peer network called Kazaa. I even linked to the 21-page brief (PDF) so you could read it and make your own assessment.

Some bloggers said the RIAA argued that ripping your own CD to your computer’s hard drive was illegal. I knew that couldn’t be right, so I read the brief. Sure enough, they were wrong. This is the RIAA’s actual contention, which can be found on page 15 (emphasis added):

It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer…Defendant admitted that he converted these sound recordings 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.

According to the brief, the authorized copies Howell made became unauthorized copies once Howell put them in a shared folder, presumably the Kazaa shared folder. I mentioned in the previous post that a “consummated transfer” wasn’t necessary for a violation to have occurred, according to the RIAA. If you rip a CD and place the MP3s into a folder to which only you have access, the copies are authorized. If the files are in a shared folder, they’re “available” to third parties, which is a copyright violation.

But the issues of “consummated transfer” and files made “available” are moot. Howell in fact transferred the files over the Kazaa network. If you clear away the smoke and ignore the underreported Washington Post story, it becomes obvious that the defendant is being sued for illegal file sharing, not for ripping CDs.

This is how I understand it: Making copies for personal use is OK. Sharing copies with others, even for non-commercial use, is not OK.

Are the RIAA’s arguments nitpicky? Darn right! I’m no fan of the RIAA. I think its position is wrongheaded. It’s scandalous that the music industry has declared war on fans. Scandalous.

But…if you’re going to write a major news story about all this mess, at least be accurate so as not to add to the mess. Then again, the reporter knew the story wouldn’t be half as interesting if he’d reported what’s actually going on.

The RIAA indeed might hold the opinion that copying your own CD for personal use is a copyright violation, but it didn’t make that argument in the brief. In fact, here’s what I found on the RIAA’s web site:

“Record companies have never objected to someone making a copy of a CD for their own personal use. We want fans to enjoy the music they bought legally. But both copying CDs to give to friends and downloading music illegally rob the people who created that music of compensation for their work.”

And a link to this (emphasis added):

It’s okay to copy music onto an analog cassette, but not for commercial purposes…It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes…Beyond that, there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as…The copy is made from an authorized original CD that you legitimately own…The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

Reading the Washington Post story yesterday, I got the impression that the reporter hadn’t read the 21-page brief and wasn’t interested in writing an objective news story. So what else is new?

Update: In a quick response to an e-mail I sent this morning, Marc Fisher, who wrote the WP story, said:

“Yes, the story is based in part on that brief: The industry found the Howells by searching for computers that were sharing files through Kazaa. That’s true of thousands of cases–hardly news. But the news here is the novel argument that the industry lawyer makes in his brief. In this case, the defendant claimed he had no idea he was sharing files, but that’s irrelevant to the argument advanced by the recording companies’ lawyer, who makes the case that the act of transferring music from a legally-purchased CD is in and of itself illegal, even if the file is not being shared.”

In the 21-page brief I read, the RIAA did not argue that ripping a CD you legally own is illegal or that “the act of transferring music from a legally-purchased CD is in and of itself illegal, even if the file is not being shared.” I asked Fisher if he read the brief. He didn’t respond to that question.

Bottom line, the article is misleading, but what does it all matter in the scheme of things anyway?

Wednesday, January 2: Happy New Year, and welcome to LBC! This post has been linked in several discussion forums, and I appreciate the acknowledgement. The Washington Post ought to issue a correction, or at least a clarification, for this story. But it won’t. The story is being cited as the gospel and retold all over the web, but it is intentionally misleading at worst and poorly written/researched at best.

My letter to the editor might be published on January 5. Check back for updates.

Later…The blogger at Coolfer writes (emphasis added):

“When read in context of the entire brief, the Post’s interpretation of that sentence just doesn’t work…This difference in interpretations reflects what William Patry calls a “calculated rhetorical shift” on the part of the press. The Patry Copyright Blog has a post titled “The Establishment Press Takes On The RIAA” on the subject. It’s good reading because it boils the issue down to its basic elements: a (debatable) fight against copyright, journalists acting as activists and the impacts of subtle, semantic twists.”

Thursday, January 3: This post got a brief mention in this news story.

Tuesday, January 8: Finally, the Washington Post sets the record straight, although quite late (emphasis added):

“A Dec. 30 Style & Arts column incorrectly said that the recording industry ‘maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.’ In a copyright-infringement lawsuit, the industry’s lawyer argued that the actions of an Arizona man, the defendant, were illegal because the songs were located in a ‘shared folder’ on his computer for distribution on a peer-to-peer network.”