In view of the tempest in a teapot created by Cary Sherman of the RIAA (apparently in response to a negative Motley Fool article and a drop in record company stock prices), in denying that the RIAA's lawyers meant what they said in their supplemental brief in Atlantic v. Howell, and his claim that Marc Fisher's excellent Washington Post article misinterpreted the statement in the brief, we thought it might be helpful to post the actual order of the court, which asked the question to which the RIAA was responding, and to post the actual answer to the question.
The October 3, 2007, order of the court, which asked the parties to brief 4 questions, is now available online.
This is the order which raised the question:
Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"to which the RIAA lawyers responded:
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. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) 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. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. 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.October 3, 2007, Directing Briefing of 4 Questions*
* Document published online at Internet Law & Regulation
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
12 comments:
In fairness to the RIAA, there is one minor piece of logic that isn't in their answer: the assertion that an unauthorized copy is also necessarily an illegal copy. Do they make that assertion elsewhere, or did the media add that on their own?
The judge asked whether they were "unlawful", not whether they were "unauthorized" or whether they were "illegal".
However, "unlawful" = "illegal".
Without wasting any time dwelling on the degree to which the facts suggests 'undisputed' evidence or whether the judge really asked if an MP3 file is an 'authorized copies distributed by Plaintiffs', I would like to offer the following observations:
RIAA seems to be making a big deal about the fact that the files are MP3 ('which allow for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol'). The fact of the matter is any digital representation of digital data on a CD is transferable, simply comes down to b/w participating parties have available to themselves. Today, an increasing number of people are converting CDs to lossless representations (be they compressed such as flac, ogg, m4a, etc or uncompressed wav). A wav file is the closest to that of a CD since it is uncompressed PCM, just as the data on a CD is. Wikipedia states that:
'Though a WAV file can hold compressed audio, the most common WAV format contains uncompressed audio in the pulse-code modulation (PCM) format. PCM audio is the standard audio file format for CDs, containing two channels of 44,100 samples per second, 16 bits per sample. Since PCM uses an uncompressed, lossless storage method, which keeps all the samples of an audio track, professional users or audio experts may use the WAV format for maximum audio quality. WAV audio can also be edited and manipulated with relative ease using software.'
Given the nearly identical nature of a wav file to that of the data encoded on a CD, one would wonder if the RIAA would state that a wav file is a digital representation of a CD in its 'original format' or it's a conversion. If even a wav file is a conversion (which is what I fully expect the RIAA to say), then any discussion of the fact that the particular conversion format was mp3 is irrelevant to the question at hand. Stripping away all of the mp3 mumbo-jumbo allows one to concentrate on the question the judge asked (my paraphrasing) 'exactly what constites an "unlawful copy" and were the defendants converted copies "unlawful copies".
Meant to say ape for ogg. Ogg is lossy; ape is lossless.
I disagree, Ray. If, and only if, we temporarily concede the the RIAA contention that a file 'placed' in a 'shared folder', is a file that infringes their copyright by virtue of the 'fact' that is 'being distributed', then, and only then, does 'unlawful' = 'illegal'. In all other cases, if we are to believe that the RIAA stance on legitimate 'fair use' file conversion from a CD audio track into mp3 format is mere dissembling, then what we have here is a lawful track with a 'potentially' illegal status.
So, did they actually answer the question asked or dodged a direct response?
unauthorized ? unlawful
They would like you to think so without actually stating it. In fact, They seem to be going to great lengths to avoid answering that.
I agree with your interpretation that they want to establish that only authorized copies are legal, therefor any unauthorized copies cannot be legal.
And the format is legally irrelevant I would think, except as to lend the perception that he was consciously engaged in file sharing over the internet.
I'm not sure the RIAA actually answered the judge's question then. Not once in that answer do they use the word "unlawful" (or, for that matter, "illegal") - only "unauthorized". Are they playing semantics, or are they really equating "unauthorized" and "unlawful"?
Okay, what about this compound phrase here:
"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."
Compressed .mp3 format AND in shared folder. Does this mean that if someone just converted a CD to mp3 and did NOT place it in a shared folder then the RIAA would not consider it unlawful?
If so, then the fact that it is in a shared folder is the crux of the problem for the RIAA; the info about mp3 format is not central to the argument, but just kinda sorta information provided for background. I'm no fan of the RIAA, but it may be possible to read this in a way in which they aren't saying that ripping a disc to computer is unauthorized.
"Compressed .mp3 format AND in shared folder. Does this mean that if someone just converted a CD to mp3 and did NOT place it in a shared folder then the RIAA would not consider it unlawful?" -nickle
Yes, I think that's what they're saying, at least now (unless they've misspoken again and if that's the case, I'm sure Cary Sherman will set it straight for us)
Just having the files (whatever format) in a shared folder does not mean "making available" or "distribution" without a file sharing program running and configured to share from that folder. If you never run a file sharing application, you are not sharing your shared folder over the Internet.
James,
I operate by the assumption that lawyers do not say things on the stand that do not have a purpose. They may be obscure to mere mortals but there is a purpose to it. At some point the RIAA will connect that dot to something else seemingly innocuous and a new precedent is born. I do think that it is significant that they made such a big deal of the ripping to MP3.
If the placement in the shared folder is all that is necessary for distribution (a point I don't concede) then the AND statement has to have a secondary purpose.
The two that come to mind are:
A) trying to establish the perception that the defendant actively participated in the distribution
B) trying to establish a groundwork to further enhance the copywrite holders control of the works.
C) Or Both
The fact that the RIAA doesn't want to clarify this point indicates to me that they would prefer to keep this issue uncertain and therefore open to manipulation.
"I operate by the assumption that lawyers do not say things on the stand that do not have a purpose." -Russell
Normally I assume the same thing, although these lawyers for Big Mu$ic are another beast entirely.
For example, did you catch this transcript (which R.B. posted here) where good ol' Rich went into a goofy tangent about drug law with the Hon. Kenneth Karas in the NY Southern District Court last year?
http://recordingindustryvspeople.blogspot.com/2007/02/elektra-v-barker-making-available-oral.html
And yes, the purpose of Ms. Pariser's "misspoken" statements under oath in the Thomas case was the legal equivalent of a Trojan horse, which they will turn into the basis for going after personal-use copies. Now they've been called on it, and we get to see whether Sherman's "correction" of Ms. Pariser's words eventually undermines their one great victory so far in this litigation campaign.
I understand the logic of going after the personal use copies.
One of the weaknesses of there case is the 'intent to distribute' it has been noted here many times that actual distribution is required by law and that they have made no case that the files were actually shared with someone, only that the potential to share existed.
but is the personal copies are illegal, the case becomes much easier to present.
'Your honor, these files existed on the individuals computer and therefore are unlawful'
Unfortunately for them, with the demise of DRM, it is going to be hard to prove that they were ripped files instead of legal downloads.
The market is like Goo. No matter how hard you squeeze, it will ooze out somewhere else.
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