Those crazy bastards at the RIAA have finally gone off the deep end. In an ongoing lawsuit they are now claiming that ripping a CD which you legally purchased is a violation of copyright law regardless of whether or not you actually distribute the files to anyone else:
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 couldn’t believe it when I read that,” says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. “The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation.”
RIAA’s hard-line position seems clear. Its Web site says: “If you make unauthorized copies of copyrighted music recordings, you’re stealing. You’re breaking the law and you could be held legally liable for thousands of dollars in damages.”
Whether customers may copy their CDs onto their computers—an act at the very heart of the digital revolution—has a murky legal foundation, the RIAA argues. The industry’s own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it “won’t usually raise concerns,” as long as you don’t give away the music or lend it to anyone.
The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG’s chief of litigation, Jennifer Pariser, testified that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Copying a song you bought is “a nice way of saying ‘steals just one copy,’ ” she said.
The industry “will continue to bring lawsuits” against those who “ignore years of warnings,” RIAA spokesman Jonathan Lamy said in a statement. “It’s not our first choice, but it’s a necessary part of the equation. There are consequences for breaking the law.” And, perhaps, for firing up your computer.
So it’s basically the RIAA’s position that if you want to have a digital copy of your music to put on your PC or play on your iPod then you’d best be ready to pony up the additional cost of buying the files from an approved retailer because ripping them off that CD you spent money on is against the law.
Given the RIAA’s attitude and tactics it should be no wonder then that album sales are down a whopping 20% over last Christmas:
To some music lovers, the fact that Josh Groban’s Noel was the highest-selling album of 2007 is all the proof they need that major-label music is dying. To shareholders and label execs, though, the numbers are more important, and the numbers are grim: music sales are down 21 percent this Christmas season.
The recent news suggests that people are turning away from the CD as a Christmas present, due in large part to the rise of online music services like iTunes, eMusic, and the Amazon MP3 shop. Now that non-DRMed music is widely available from many popular artists, giving the gift of digital downloads can be an attractive option for holiday shoppers. Certainly it’s becoming more mainstream; even my local supermarket now stocks iTunes gift cards.
Music buying has certainly been migrating online, and the spectacular decline of CD sales is putting extra pressure on labels to move more online copies of the music they publish. This is clearly one of the reasons that Warner, traditionally a staunch DRM defender, agreed to strip DRM from its tracks offered on Amazon; it needed to do something (anything) to shore up flagging sales.
In the future it may not matter if the RIAA thinks ripping a CD is illegal as there may not be any CDs of music to buy. You would think that after four years of suing their own customers, putting Grokster and Napster out of business, and still not making a dent in the amount of songs shared online that they see the writing on the wall. Well, it is starting to sink in with the big music labels as Sony BMG is the only one left still putting out DRM protected digital files, but it’s going to take more changes that simply getting rid of DRM for these companies to survive in the future. They’re going to have to change their business models. Even that could end up being moot if more and more artists follow the trend of just releasing their music to fans directly and making their money off of concert tours.
Update: I need to put a clarification in here. It turns out the Washington Post article has caused quite a stir and the RIAA wants to let folks know that the defendant in the case in question is being sued because he placed the MP3s he ripped into the shared folder of a P2P program:
News that the RIAA, which earned widespread opprobrium for its prosecution of Jammie Thomas, is flexing its muscles against consumers, was enough to make the blogosphere’s collective blood boil. If accepted, the argument that merely ripping a CD to MP3 for personal use is illegal would cut to the heart of the fair-use exception of copyright law.
The only problem: No such claim was made. What RIAA lawyer Ira Schwartz wrote in a supplemental brief was: “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 critical phrase there is “shared folder” because the rest of the brief makes clear that the RIAA is claiming that Howell not only ripped his CDs but also put them in his shared folder in Kazaa, thus making them available for worldwide distribution. The RIAA has successfully argued that mere presence of copyright files in a shared folder constitutes “distribution” under copyright law.
Which is all fine and good, but that doesn’t change the fact that the RIAA has stated on more than one occasion that CD rips are “technically” unauthorized copies and that when someone rips a CD they’re essentially “stealing only one copy.” This leaves open the door for them to take that last step and try and sue someone who was engaged in activity considered Fair Use. So while it’s true that in the case in question they’re not suing because the dude made MP3s for his personal use, that doesn’t mean they won’t in the future as they’ve specifically gone out of their way to make statements leaving that as an option.