Personal use is copyright infringement?

In the latest example of how the Recording Industry Association of America (RIAA) has utterly failed to understand and adapt to the changing music landscape, RIAA has brought suit against a man for copying his legally purchased CDs to his personal computer for personal use.

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.

Apparently, if you choose to fight back against RIAA’s overreaching on copyright infringement issues (as Mr. Howell apparently did), you can be sued for having the audacity to assert fair use privileges over your own, legally purchased music.

[L]awyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

Given the fact that fair use for time and location-shifting was decided by the U.S. Supreme Court in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), I don’t see how RIAA has a case here. The question is whether something like the Digital Millenium Copyright Act (DMCA) has something in it that changes the law regarding fair use. As far as I can tell there is nothing in the DMCA that changed the time- and location-shifting permission for free use – the DMCA makes it illegal to bypass DRM and grants immunity to ISPs who store music for their users, but nothing I’ve found on other free use issues – but I’m hardly a copyright lawyer.

UPDATE#2: The MSM seems to be a bit confused on this one, but court papers indicate that RIAA’s lawyer Ira Schwartz actually IS claiming that Mr. Howell’s ripped CDs are infringing.
UPDATE: Apparently I misunderstood the issue some – the issue here is that Mr. Howell apparently put the music into a folder that was publicly shared, enabling people to access it via an intranet (like putting your music up on a home network, perhaps?). So it’s apparently still file sharing, albeit at a much lower level than wide-scale P2P. Regardless, though, RIAAs statements from the WaPo article are more inclusive than the actual lawsuit. (Thanks to Sam for the correction)

Other commentary:
The Register
Internet DJ

17 replies »

  1. According to an NPR report, the charge is that the guy ripped the CD into a PUBLIC folder on his computer, which could then be accessed by others. So the issue is still unauthorized distribution, just on a much smaller scale than one of the P2P networks.

    However, even if there’s a technically valid point of law in there somewhere, I think the RIAA’s position becomes clearer and clearer. They have NO FUCKING IDEA what to do about all this reality around them, and they’re going to keep suing people until it’s 1975 again. If I get summoned for jury duty and there’s a case where somebody is accused of shoplifting music, the prosecutor is in for a long day. Even if he has video evidence, a taped confession, 35 eyewitnesses and a defendant who breaks down on the stand like he’s being buggered by Perry Mason.

    I’m still waiting for someone to provide me with an example of an industry that succeeded with a “sue the customer” business model.

  2. Thanks, Brian. The recording industry is as determined to bring about its own destruction as the book publishing industry, with its high prices and antiquated marketing system.

    Also, killer quote, Sam:

    I’m still waiting for someone to provide me with an example of an industry that succeeded with a “sue the customer” business model.

  3. While I’m no fan of lawbreaking, I must note that some suspect mp3 files have popped up on my son’s hard drive, while he’s on our home network. Since he’s been home for break, I see his Torrenz page, and it’sfilled up with current downloads. I suspect much of these files are copyrighted material, about 300 gigs worth. The sad thing is the downloading police will be knocking on my door, and making me write a huge check while he will be back at school.


  4. Well, forget my earlier comment, because it looks like they ARE claiming that all rips are illegal. Here’s what the RIAA’s weasel lawyer says.

    “It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer,” the brief states. “Virtually all of the sound recordings on Exhibit B are in the ‘.mp3′ format. … 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.”

    The language here looks to me like bad lawyering. Once they’re converted into mp3s AND they’re in a shared folder they’re illegal – does this mean that they’re not illegal if only one condition is met? Or is he asserting that either condition constitutes lawbreaking?

    My guess is the latter.

  5. Hmmm, I wonder where I can get my I steal music off the Internet T-shirt? 😉

    This RIAA war on music has all the legitimacy of the War on Drugs nonsense. Overblown and made up conservative ideas for the financial gain.

    There’s a point where laws should be judged on whether they’re actually valid or not; not because corporations write them and government flunkies pass them. Especially when the music itself is only worth $15, then it should probably only be something akin to the cost of a speeding ticket.

  6. Jeff – I’d hope you plan to send your son the bill if one comes up. Take away the car keys (assuming he’s using yours, anyway), make him get a job until he pays off the debt, that sort of thing.

  7. Bring prices down and you’ll see less file sharing. After all, file sharing can be labor-intensive.

    Amazon has taken a step in the right direction with MP3 albums for $9.00 and songs for $.89, down from iTunes’s $.99.

    Since the cost of supplies is so cheap, the price can come lower still and marginalize file sharing completely.

    I”d like to see the same for books: $3.99 for the average ebook and an accompanying PDF.

    With prices like that, you’d see people taking chances on something new all the time.

    Like when I was a kid and scoured the racks at the local discount mart for new LP releases at $2.99 . That’s how I build my eclectic-to-a-fault record collection.

    That adventurous spirit in patrons of the arts needs to be nourished.

    Disclaimer: I’m not a businessman. Feel free to tell me if you think I’m dreaming.

  8. Brian,
    Unfortunately, my kid has his car up at school and I’m unable to discipline him holding the car over his head. I could threaten to withhold his tuition, but that would be akin to shooting a frog with an elephant gun. Downloading is here to stay and the illegal downloading will always be a major factor. The RIAA dropped the ball and refused to change their business model when the file sharing began in ernest. I think their “Sue their customer base” is the hallmark of an industry that’s going the way of the horse and buggy.

    The artists are still getting their money, just it comes from a different source. When I first saw the Stones, the ticket was $6.00….the last time we went, we paid over $200 per ticket. I know there’s been a bit of inflation, but $200????


  9. On pricing: I’d love it if the majors would look hard at the eMusic model. I get 50 tracks a month for $15, and if you look at my forthcoming best of 2007 list you’ll discover that there are some outstanding bands working with eMusic. So my advice – screw the majors, check out eMusic, and wait for the big boys to catch up.

  10. Russ – I agree. Make the pricing thing a non-issue (and make sure that most of what you’re paying goes to the artists, not the lables) and most illegal downloading will go away.

    Sam – While I agree that eMusic isn’t bad, I despise the subscription model. It’s great if you remember to download all 50 tracks – that’s 30 cents per track, well below my personal “price of entry” of 50 cents. But if you forget to download your tracks one month for some reason, you just blew $15. And the combination of lots of automatically recurring monthly charges can bury someone in unanticipated debt or bank fees WAY too fast.

  11. Brian: That’s the easiest thing in the world to fix – rollover the tracks. eMusic isn’t doing it yet, but they will at some point.

  12. Sam – that solves one problem, but not the subscription problem. And I doubt that eMusic will do that for the same reason that most subscription services don’t – they probably make most of their profit from people who do exactly what I said – forgot to download their full suite of available downloads.

    Here’s an example – John Doe subscribes to eMusic and a number of other subscription services and has a good job. He’s doing the responsible thing and has the subscription services all tied into his bank accounts instead of filtered through a credit card. John’s employer hits rough times and lays him off, leaving John to scramble. John’s never been laid off before, and he forgets to cancel a couple of his subscriptions. They come around after a while, and finally one hits when he’s got no money in his account because he’s a day late in depositing his unemployment check. John’s bank hammers him for $20-40 of insufficient funds fees, and he’s suddenly in worse shape than he would have been.

    As someone who’s been laid off before the subscription model took over, I can see this happening all too easily.

    Now, this isn’t eMusic’s problem as such – it’s inherent in the subscription model. But it’s automatically avoided in an individual track purchase model – there’s no risk of John Doe getting screwed by forgetting to cancel his subscription. It’s the difference between active participation in commerce (purchasing individual tracks) and passive participation (getting tracks until you choose to stop). In this particular case, I strongly prefer the active model, even if it’s less convenient.

  13. Thanks, Brian. As a proponent of the subscription model, I never looked at it that way before. Active vs. passive — have to think about that.