Monday, December 10, 2007

RIAA files supplemental brief in Atlantic v. Howell; argues personal copies ripped to computer are unauthorized

In Atlantic v. Howell, a case against a pro se litigant in Arizona, the RIAA has filed a supplemental brief in support of its motion for summary judgment. The Court has given Mr. Howell until January 11th to respond, and has scheduled a hearing for January 24th at 2:00 P.M.

The RIAA's brief makes the novel contention, contradicting its lawyers' arguments at the Supreme Court in MGM v. Grokster, that making personal copies of songs from one's CD onto one's computer is an infringement.

In the US Supreme Court, the record company lawyers said:

The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod. There is a very, very significant lawful commercial use for that device, going forward.
MGM v. Grokster oral argument page 12 lines 1-7.

[Ed. Note: There's been some controversy on several web sites about whether the RIAA's statement in its brief really means what I said it means. A few commentators have argued that the RIAA was just saying that the copies were unauthorized because of their location in a shared files folder (whatever that is). I do not think their interpretation holds water.

Here is the actual statement. I've italicized part of it, and underlined part of it.
It is undisputed that Defendant possessed unauthorized copies... Virtually all of the sound recordings... are in the ".mp3" format for his and his wife's use... Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies....
I believe one lawyer wrote the italicized portion, and then his or her supervisor -- probably Richard Gabriel or Matthew Oppenheim -- added the underlined portion, in order to fudge the issue and make the passage sound more palatable.

The judge had asked whether the copies were themselves unauthorized. The RIAA has taken the position, in testimony at the Capitol v. Thomas trial, on its web site, and in congressional testimony, that copying files from a cd onto one's hard drive is a copyright infringement (despite the fact that its attorneys had stated otherwise to the US Supreme Court). The RIAA was answering the question "yes". And then throwing in the part about the shared files folder -- which was completely nonresponsive since the judge was asked whether the copies themselves were unauthorized -- for strategic reasons.

Note that

1. The grammar is odd, not being parallel... correct grammar would have been "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and placed them in his shared folder, they are no longer the authorized copies..." Instead it reads "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies..." This is the kind of mistake that can happen when a cut and paste operation is going on, with multiple chefs making the stew. The phrase was clearly an afterthought.

2. The judge was asking about the status of the files before they were placed into the shared files folder (a fictional concept by the way), so the location was irrelevant to the question.

3. If they were saying that the copies were unauthorized because they were in a shared files folder then all of the italicized language about the "compressed" ".mp3" format was completely irrelevant.]


RIAA Supplemental Brief*
December 10, 2007, Order*

* Document published online at Internet Law & Regulation

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Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs






42 comments:

Alter_Fritz said...

Wow, that is interesting;
"It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. [...] Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) 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."
(emphasis added]

Ray, short free lesson in american copyrightlaw please.
Is that true? americans are not allowed by law to convert their own CDs and store the converted files where they so please. What about fair use?

And if it is indeed illegal to convert CDs why has the recording industry not sued your President already. He admitted on camera he had songs from the beatles on his ipod. those songs could not have be landed there from an authorized online sale. (there is a you tube video somewhere with that interview)

Ray Beckerman said...

Good catch, alter_fritz.

Dylan said...

alter_fritz: Seems like a weird way of saying... whatever they are trying to say. I would assume they just mean that through the process of converting the CD tracks to mp3 files they ended up in his shared folder and that's where the supposed infringement occurred.

But even looking at it the way you interpreted it, wouldn't that mean that it is fine by them if you share the raw CD tracks? I'm pretty sure that's prohibited under the DMCA, but indeed it is a strange statement.

I believe there are provisions in the DMCA for personal copies/backups of media to be made, however I don't think the media companies have ever been very happy about that and likely have no qualms against ignoring it.

Ray Beckerman said...

You saw them say it, in the brief. You didn't see them cite any authority for their novel argument.

Matthew said...

What part of the fair use provision of the copyright act to judges and RIAA lawyers not understand?

Anonymous said...

If I cannot rip my CDs, I want every penny I ever spent on RIAA music refunded to me, with interest.

-Jimbo

David Taylor said...

Bush and his iPod can be found here.

http://youtube.com/watch?v=WavYRgThYvw

Matt said...

I hope the Judge owns a iPod or has burnt a CD or even listened to a CD ripped by a friend.

Ray Beckerman said...

Comment rejected. Policy #8.

Anonymous said...

When I put a CD into my pc Windows Media Player immeditaly asks if I wish to rip it to my hard drive. iTunes also offers the same function. Am I to assume the RIAA will be filing against Microsoft and Apple for offering this functionality?

-concerned from UK

Anonymous said...

"Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. [...] Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.)"

This is a very weak argument. Just because a file has an extension of .mp3 (as seen in a screenshot), it doesn't necessarily follow that the files WERE using the mpeg 1 layer 3 compression format at all. They may well have been .aif files (the raw CD format), but simply renamed .mp3. There's nothing to stop you doing this - in fact, if another user were to try and download/use the file without renaming it back to .aif there's a good chance it would appear to said other user's computer that the file was corrupt. Therefore it COULD be argued that by simply renaming the files with a .mp3 suffix, the defendant was in effect attempting to STOP illegal distribution or unauthorised playback of the original recordings.

They have no way of proving otherwise simply from looking at screenshots.

Put THAT in your pipe and smoke it RIAA!!!

Plus there's always the fact that space-shifting your music (ripping CD's to your media playing device) has faced this precedent previously and been approved as a legal 'fair use' for consumers.

Nothing Noteworthy said...

"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 key word there is "and". The copies were authorized until they shared them on a peer-to-peer network. Am I missing something here?

Emily said...

I think that the only dignified response from the AZ Supreme Court is probably "You don't write law, we do."

Will the RIAA be pursuing legal action against the creators of software like iTunes and RealPlayer for creating software that violates copyright?

James said...

I could be mistaken, but I think the distinction they're making is that the "backup copy" wound up in a folder shared over kazaa.

dB Masters said...

So, when I purchase a CD do I purchase the physical CD or the right to enjoy the content within it? If I am only buying the CD, then I should only be paying a buck or two as that's about it's value...I buy them to enjoy the art within it. How or where I choose to enjoy it is kinda my choice isn't it?

Anonymous said...

If the crime committed was possessing music in the MP3 format, then doesn't that make the entire Amazon music delivery service illegal? I mean it sells you music, DRM-free, in mp3 format. Ray, how would the RIAA deal with files from there in a lawsuit?

-MoistDinosaur

pseudus said...

The thought that occurs to me, is that the RIAA is looking to cash in on each format. You bought that recording on a CD, if you want it in MP3 you will have to buy it from us. Oh, you need AAC or MP4, hit the hip, you will pay us again.

also, dylan, the statement had 2 parts to it, the first being converting to compressed .mp3 format "and" that the recordings were in his shared folder. i think they are clearly harping on the different format than was purchased. I am inclined to agree that converting the recodings to any format for personal use would fall under fair use.

something that strikes me though is the question of whether or not the location of the files is the actual issue. if the files were in fact in the shared folder but only long enough to convert them, that in itself is not wrong, now if kazaa was connected at the same time, or any time after that, then the question of distribution comes into question.

Anonymous said...

I think there is a catch 22 in all of this. As a home user running xp/2000/vista, if you want to share any files, pictures or songs or videos of your kids you must enable simple file sharing. By enabling simple file sharing the operating system, by default, creates admin shares at the root of the drive, i.e. c$ = c:\. Therefore by enabling this feature you have effectively shared every single file and folder on every drive in the computer (except removable drives, like CD-ROM/floppy). Am I guilty because I converted CDs with itunes but have an Operating System generated drive level share that provides access to everything on my computer?

Ray Beckerman said...

Dear "nothing noteworthy"....

Yes you are missing something here.

Logic.

The judge was asking if the RIAA contended that the making of the copies was itself unauthorized.

In that question he was not asking about what was done with the copies; he was asking about the copying.

The RIAA lawyers didn't want to concede that the copies were legal, so they stuck in that fudged sentence.

showmedaevidence said...

I guess I don't understand the rules of "evidence". A screenshot of a list of filenames in Kazaa does not show copyright infringement. Unless the RIAA downloaded each of those files, confirmed their contents, and can produce each of those files and compare them to the real thing in court, it's not evidence of a copyright violation.

Igor said...

"and they are in his shared folder"...I'm betting they were not in fact in a folder that was titled "shared" if they were in fact ripped but in a folder called "my music" as most ripping software places the songs there. I'm also betting that Kazaa scanned his computer w/o his knowledge and allowed others to see the contents of that folder and perhaps access it (notice that I didn't say Kazaa shared...since sharing implies movement).

What I think the RIAA wants to say is ripping your missing and installing kazaa is grounds to be bullied by them.

Greg said...

The RIAA has actually been saying that for years... That's not a new argument and is no different from the stance that they have upheld for years and years...

Anonymous said...

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-480.pdf

The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod. There is a very,
very significant lawful commercial use for that device, going forward.

pg 11, line 1-7

Isn't there a problem with arguing one side before one court and arguing the exact opposite before another? I wonder if anyone has a reference to "their Website" where it said it is legal to put songs on your iPod.

Q

Ray Beckerman said...

For those of you who can't see the long link posted by anonymous Q, here is a link to the RIAA's contrary statement in the US Supreme Court.

Thank you, anonymous Q.

Ex-Music Lover said...

What seems to hold true in every part of the US is when lawyers invade a trade, they seem to be the only ones to win. Now since the whole copyright problem began, upon studying the law and watching the case law form, more and more opressive I see this whole thing become. I was of the opinion that music was about free expression, now it just doesn't seem that way with all the fine print. I had no idea that purchasing music would make me a criminal, therefore I am going to destroy all of my cd's and any music captured to my home system over the past that I enjoyed enough to have made available without having to dig through the library. RIAA you win, music sucks, and it's industry can be leveled by greed, you are the proof.

Now I suppose you will undoubtedly tell my that I am not licensed to destroy the media or the digital format off my pc as destruction of it is not within the license, sorry, so sue me, that would be within your pattern of greed...

Anonymous said...

A one-word reply:

estoppel.

-ZYX

Ray Beckerman said...

Comment deleted. Policy #8, possibly #3.

Anonymous said...

Plaintiffs should be allowed to prove actual distribution based on circumstantial evidence.

Here is the true key to the RIAA's campaign. The law says that copies must have actually been distributed. The RIAA admits that this is virtually impossible to prove, so they want to insist that it isn't necessary to prove literal distribution. The fact that they may well be the only people who ever looked for those songs on that computer doesn't matter. Billions of songs are being distributed, and hundreds of courts agree with us, and that's all that matters.

I hope the court will realize the huge attempt to rewrite the existing law here and slap it down appropriately and completely. The RIAA should be told that if they don't like the way the laws are written, take it up with Congress. The courts enforce the laws as written.

Here, the evidence shows that Defendant actually distributed the other 43 Sound Recordings that are the subject of Plaintiffs’ motion for summary judgment.

None of those are even shown to be the actual songs in question. None of them are more than a filename on a questionable listing at this point.

Specifically, it is undisputed that all 54 of the Sound Recordings at issue were in the KaZaA shared folder on Defendant’s computer and that Defendant distributed 11 of them on January 30, 2006.

Very important question here. Does KaZaZ only share a single folder? Many P2P programs have an entire list of folders they combine into a single shared list of files. The RIAA contends that illicit song files were intentionally placed in a KaZaA Share Folder, and nowhere else. This may well never be true, and is yet another example of the RIAA shading the truth and making it appear as something other than it actually is to those not familiar with P2P program operation.

It is further undisputed that the whole purpose of KaZaA is to share files with other users and that Defendant intended this purpose when he downloaded KaZaA to his computer.

That is not the whole purpose of KaZaA. Some people leach (i.e. download without ever offering files for upload in exchange). You cannot say that KaZaA exists ONLY to share (distribute) your files to others.

The United States Copyright Office has reached precisely the same conclusion.

The Copyright Office doesn't write the law. No judge should codify their opinion into law.

You know, filesharing wouldn't be so popular, if the record companies weren't so hated!

--CEB

maggosh said...

Geez. The RIAA is corrupt already.
If this be true, 90% of the US is criminal.

"And if it is indeed illegal to convert CDs why has the recording industry not sued your President already. He admitted on camera he had songs from the beatles on his ipod. those songs could not have be landed there from an authorized online sale. "

Right. Like, when was the last time you could buy a Beatle's song on the internet for the standard price of $0.99? Never. Exactly.

JD said...

Two comments. This is outragous and idiotic PR, yes. But there is no controlling SCOTUS case on record interpreting fair use as allowing you to make backups of CDs (This is why the Digital Media Consumers' Rights Act needs to be passed). Fair use is as much a misunderstood legal concept as entrapment is.

Also, is there any evidence Bush ripped those songs from a CD, rather than buying them from the iTunes store?

BlackSol said...

JD said...

"Also, is there any evidence Bush ripped those songs from a CD, rather than buying them from the iTunes store?"

AFAIK, Beatles songs aren't available on iTunes, and will not be til early 2008.

Ex-Music Lover said...

"Two comments. This is outragous and idiotic PR, yes. But there is no controlling SCOTUS case on record interpreting fair use as allowing you to make backups of CDs (This is why the Digital Media Consumers' Rights Act needs to be passed). Fair use is as much a misunderstood legal concept as entrapment is.

Also, is there any evidence Bush ripped those songs from a CD, rather than buying them from the iTunes store?"

It is common knowledge that the Beatles have never been offered digitally, the only way that this could be found in the wild is if it was encoded by an owner of the media, or pulled from P2P.

Furthermore, I happen to find this to be an insult as an amerikan, to think that the commander and chief of our nation could be held responsible for copyright infringement, shame on you, do you know that our method of election is nothing short of perfekt? This can only be sorted out by our infallible justice department in a court of law, you know those perfect folks that have never ever sent an innocent man to his death under capitol punishment, they should be able to make quick work of this, and those moral giant lawyers, they can be trusted with anything just like our political reps, including our children, newly acquired property of the state under divorce court case law, pay no mind to the 35% increase in being potential criminals for those, it only means we as a people will have more choices on our ballets come election time. I believe in our system so much that we should be able to impose this on other nations around the world whole heartedly, it shows within the value of our dollar in comparison to other nations. We must sell out our children’s future to reap the profits for today… Kiss tomorrow goodbye…

Leave the PR to the lawyers, in the end the labels will agree, Rock is dead… (no other chorus) The RIAA dropped the dime, they made their bed, the bed of the artist, and the end user too, sure they will squirm as they discover the truth of what they have done, all to “preserve the profit for the artist” not that what the artist brought in was anything to speak of, in all it is just another market in the US closing up shop, a small part of a larger picture.

Anonymous said...

JD, at the time Bush put those Beatles songs on his iPod, there were no Beatles tracks up for purchase on on the iTunes Music Store. Apple Corps made a deal only this year to sell music over iTunes, while that video of Bush and his iPod linked further up is from August 2006.
-Dave

Anonymous said...

Re: The president's ripping cd's being illegal.

I hear Edgar Bronfman Jr. already sat the pres. down and had a good talk with him. Just like he did with his kids.

Nohwhere Man said...

A minor point-
It is common knowledge that the Beatles have never been offered digitally

Not true. They may not have been offered for -download-, but there are certainly CDs available, which are by definition digital. These little bits really matter in the discussion.

Silly Nickname said...

And if it is indeed illegal to convert CDs why has the recording industry not sued your President already.

Unfortunately, from what I've seen the interpretation and enforcement of laws in the US often depends on who you are or what you can afford. My biggest beef with the legal system is that it is unfair in that way.

Anonymous said...
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Anonymous said...
This comment has been removed by a blog administrator.
Onni said...

Hi, Ray. I said this on Techdirt, but I guess you're not following the conversation there anymore.

I think you are right, but you were focusing on the wrong part of the statement. Take a closer look at the last part:

"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." (emphasis added)

The only copies the plaintiffs ever distributed are the CDs the defendant, Howell, owned.

It makes no sense to say that once his MP3s are in his shared folder, they are "no longer the authorized copies distributed by Plaintiffs." Howell's MP3s were never distributed by the plaintiffs. He made them himself.

rakslice said...

Does "unauthorized" just mean without explicit permission of the record company? Isn't the real issue not whether the such copies are unauthorized, but whether such unauthorized copies are illegal?

Jason said...

RIAA says, Copying CDs... 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.


There needs to be a clear distinction between just making a compressed .mp3 copy on your personal computer for personal use, and putting it in a music-sharing location.

Mr Cookers said...

yes, I agree with you, sometimes recording industry has problem with the people. Anyway,converting the CD tracks to mp3 files are not illegal I think..