Recording Industry vs The People: Washington Post Article: "Download Uproar: Record Industry Goes After Personal Use"

Sunday, December 30, 2007

Washington Post Article: "Download Uproar: Record Industry Goes After Personal Use"

THE LISTENER
Download Uproar: Record Industry Goes After Personal Use
By Marc Fisher
Washington Post Staff Writer
Sunday, December 30, 2007; Page M05

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing.

Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle.

Now, in an unusual case in which an Arizona recipient of an RIAA 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.

Complete article

Marc Fisher Blog (Version with Comments)

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Keywords: digital copyright law online internet 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 intellectual property

9 comments:

Unknown said...: Let me ask a question to clarify what's going on here: Is the RIAA suddenly losing confidence in its ability to escape from this fracas unscathed, due to the counterclaims, and so they're trying to force the issue by piling on a bunch of extra (though dubious) stuff?

Much as I hate to see a guy get socked with all those legal bills, I'm really hoping this question gets settled in court. One would think that MP3 player manufacturers (hello, Apple!) would have a vested interest in coming to the defendant's assistance now that the RIAA has leveled accusations that would completely destroy the MP3 player market if the court ruled in the RIAA's favor.; December 30, 2007 at 2:02:00 PM EST
Jadeic said...: Ray, I had already picked up this piece as a regular internet reader of the Post and in one of my many copyright-related Google alerts. Great to see a straight report of affairs in the mainstream press for a change: with just a tinge of hostility towards the RIAA stance. Perhaps the wider public are slowly waking up to the implications of the the RIAA's subversive attempts to rewrite copyright law on the fly. As a general point, can you say whether you are getting more approaches from the media for a counter-balance viewpoint that we never hear of over in Europe and if so do they print what you report?

Secondly, and this is just a thought (a bit of seasonal silliness perhaps), if the RIAA stance really is hardening in this area (as bizarre as that may seem to us as a way forward for them as part of a coherent business strategy) perhaps as consumers we should do as they no doubt expect of us and that is write to seek authority from the RIAA as the representative of the copyright holders to transfer the tracks from CD into whatever format we require. Although I would never endorse the proliferation of chain letters I could well see this catching on: i.e. Here is a list of (say) five albums I have asked the copyright holders to give permission for me to copy to my computer, please add five of your own and pass the list on to your friends and family. Within days the RIAA could be inundated with millions of legitimate requests for copyright clearance. I wonder if that is what they want? Somehow I doubt it!

We live in a mad world that is not all of our own making.

Dave; December 30, 2007 at 2:17:00 PM EST
StephenH said...: This is interesting. From the RIAA's own "MusicUnited.net" site (This site is registered to RIAA by the Whois Database), it says about Copying CDs:

Copying CDs

* 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:
o The copy is made from an authorized original CD that you legitimately own
o 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.
* ·The owners of copyrighted music have the right to use protection technology to allow or prevent copying.
* Remember, it’s never okay to sell or make commercial use of a copy that you make.

So if the person legally copied a CD to their MP3 player, it should be OK, and the defense should site this site:

http://www.musicunited.net/2_thelaw.html#5

I personally beleive that copying music to your own computer or MP3 Player from your own CDs should be legal, contrary to the RIAA attacking "fair use". If the RIAA did not want people to know that this is OK, it should correct MusicUnited.net not attack the public on this "fair use" right.; December 30, 2007 at 4:43:00 PM EST
Anonymous said...: I seem to be missing something. Although the allegation that the RIAA is going after him for copy his CD's to a hard drive is all over the net, I don't see anything in the posts of case documents that says any such thing. The most recent filing by the RIAA aks only for summary judgement because he uploaded using KaZaa.

Kip; December 30, 2007 at 4:56:00 PM EST
Anonymous said...: Didn't the RIAA testify to the supreme court that ripping CDs was legal? And aren't they thus estopped from arguing otherwise now?; December 31, 2007 at 1:01:00 AM EST
Anonymous said...: Ray,

I've found this write-up in a few areas on the net today. It would appear that someone out there is trying to discredit your web site. What say you?
http://www.newsfactor.com/story.xhtml?story_id=13300C81I5JE

RJ; December 31, 2007 at 10:46:00 PM EST
raybeckerman said...: Dear anonymous RJ

Thanks very much for looking out for me.

I discussed this in detail in my original post on the RIAA's supplemental brief in Howell, under "Ed. Note".

I don't think those who disagree with my interpretation of the passage from the brief are 'trying to discredit my web site'.

But I do think they are mistaken.

I don't think they know the context in which the judge asked the question, which was in the context of the Hotaling case, in which the copies were illegal copies and the Court used the term "unauthorized" to convey the term "illegal".

And I don't think they know the despicable tactics of the RIAA lawyers as well as I do. I know they are vultures trying to take advantage of the fact that Mr. Howell doesn't have a lawyer, and hoping they can trick the judge into putting some language into a decision that they can use to support their view that ripping cd's into mp3's is copyright infringement.

Also it's fascinating that although certain web sites have pointed out the "error" in my interpretation, the RIAA -- which actually spoke to Mr. Fisher for the Post article -- did not.

Why did Mr. Lamy not use that opportunity to "clarify" his position and explain that it was only the "sharing" the RIAA is concerned with?; January 1, 2008 at 5:15:00 PM EST
James said...: They're forgetting something. The files have to be in the shared folder and the file sharing program has to be loaded up and running and configured to be sharing the files in the shared folder with anyone online. I think Kazaa is (was?) set up to do that by default, but sharing can be disabled. The presence of music in a shared folder does not necessarily mean it is available all the time, not even if a computer is connected to the internet or even if a file sharing application resides on the hard drive (but is not running).; January 1, 2008 at 5:34:00 PM EST
Timothy Durnan said...: OK, maybe I missed some big change to audio recording copyright in the past several years, but I was under the impression that ripping from a CD to an MP3 (or the equivalent) on a computer's hard drive constituted "Fair Use." Wasn't there a ruling about that several years ago, in the case with the RIAA suing the makers of the Rio MP3 player? I can't recall enough specifics to actually find any information about it online, but I'm pretty sure that it was ruled that the computer's hard drive (and by extension, the MP3 player) didn't fall under the AHRA, and furthermore it was equivalent to "time-shifting" as defined in Sony v. Universal (the case regarding home VCRs).

Can someone fill in the missing pieces in my beliefs? Or am I barking up the completely wrong tree?

Thanks,
-Tim; January 2, 2008 at 8:36:00 PM EST

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove