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.
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
Commentary & discussion:
Heise Online (German)
Geek News Central
Thomas Hawk's Digital Connection
PC Magazin (German)
Digital Copyright Canada
Northwest Progressive Institute
Louisville Music News
Frantic Music Industries
Gazetapa Technologie (Polish)
Handakte WebLawg (German)
The Technology Curmudgeon
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