RIAA Argues That MP3s From CDs Are Unauthorized

NewYorkCountryLawyer writes "In an Arizona case against a defendant who has no legal representation, Atlantic v. Howell, the RIAA is now arguing — contrary to its lawyers' statements to the United States Supreme Court in 2005 MGM v. Grokster — that the defendant's ripping of personal MP3 copies onto his computer is a copyright infringement. At page 15 of its brief (PDF) it states the following: '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...'"

Fair use!!!

OK, here is the deal... I just bought over $200 worth of music on CD and I absolutely guarantee that this will be the last music purchase I make from any RIAA backed artist unless they start recognizing fair use. In fact, in the MGM vs Grokster case, the RIAA suggested that iPods have a substantial and legitimate commercial use in contrast to Grokster.

This case appears to be an absolutely clear fair use case. This individual, like hundreds of thousands of others *purchase* music from legal sources and while I just spent the last ten minutes typing out an explanation for why this may be the case, I have realized that we've all heard this ad nauseum. What is it going to take for the shareholders of all these companies to stand up and say enough? What is it going to take before all consumers simply say "enough of this hassle, no more music purchases?" What is it going to take before these people wake up, realize that they need to stop treating their paying customers like criminals? When are they going to realize that rather than litigate against the pirates, they should simply realize that they should compete against them by offering great service for reasonable prices and get rid of all the DRM? There is a reason that music sales are dropping (actually a dozen or so), but if the RIAA and their associated represented companies simply started going back to basics, finding and promoting good talent (there is lots out there) rather than promoting the engineered bands, or what they think should be popular, they could go back to making money. Look, Long Tail economics gives them everything they need to start making more money, even from music in the public domain. Hey, I'd buy music if made available from a huge variety of artists that are currently out of print or have entered the public domain, but are no longer available.

Re:Fair use!!!

What is it going to take for the shareholders of all these companies to stand up and say enough?

Erm, maybe when their shares stop making them money? People will invest in all sorts of things and ignore moral/ethical dilemmas, as long as it is making them money. Such is human greed and capitalism.

What is it going to take before all consumers simply say "enough of this hassle, no more music purchases"?

That'll only happen when Joe Public who buys the random, mass-produced crap that makes it into the charts feels he is affected. For the moment it is only the comparative minority who rip and share MP3s en-mass who really worry, and those geeks who keep track of the news who can see where it will end up.

What is it going to take before these people wake up, realize that they need to stop treating their paying customers like criminals?

Maybe when their business model finally bites the dust and some other group using online distribution without DRM is still going strong. Even then it is only a maybe.

When are they going to realize that rather than litigate against the pirates, they should simply realize that they should compete against them by offering great service for reasonable prices and get rid of all the DRM?

Again, it'll cost money to do that. They can sue lots of people for tens of thousands or they can spend millions restructuring and working on a better model. Which one seems better in the corporate world?

Re:Fair use!!!

That'll only happen when Joe Public who buys the random, mass-produced crap that makes it into the charts feels he is affected.

The RIAA-affiliated labels don't produce only mass-produced crap. The big classical labels, including the ones like DG that have issued low-selling avant-garde records, are members of the RIAA.

Re:Fair use!!!

What we are seeing here is a classic case of the death of an obsolete business model. The RIAA is part of the old guard and the whole reason for their existence is the current business model of selling and distributing music. They are fighting for their very existence. There will always be music and musicians and long may they prosper.

"The true triumph of reason is that it enables us to get along with those who do not possess it." Voltaire

Re:Fair use!!!

Part of the problem is the RIAA thinks that fair use isn't fair. And they're bound to be able to change a few people's minds to their side with the way they throw around money; let's hope they don't change too many (more) politicians minds on that before people stand up as you suggest, because by that point it may simply be too late.

labeling?

How can you tell whether music is from an artist represented by the RIAA?

Maybe we should ask for a labeling requirement on all music (CD, on-line, radio) indicating whether the music comes from an RIAA artist or not.

Re:labeling?

You can easily check if an artist, album or label belongs to RIAA using http://www.riaaradar.com/ [riaaradar.com]

Re:You're *just now* starting to boycott???

Some people are addicted to their music, and can't live without their occasional fix. Thus, they'll buy music from the RIAA regardless of how much they hate them. To such people, getting a fix is much more important than making a point about the RIAA.

Re:You're *just now* starting to boycott???

no one is asking you to stop buying music - just no via the RIAA.

I buy pretty much everything direct now - from ultra obscure stuff like Richard Skeltons wonderful work: http://www.sustain-release.co.uk/ [sustain-release.co.uk] to mainstreamish things like Neubauten and (drum roll) Radiohead.

More bands should get with the program and opt out of the RIAA as well.

There is Music out there - the RIAA is not interested in music and it is not interested in its customers/victims

Re:You're *just now* starting to boycott???

You can always buy your mainstream music second hand. I'm pretty sure that pisses them off a lot more than piracy. It's being sold legally yet they don't get a penny and they'd ban it if they could.

Learn how to summarise

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. Moreover, Defendant had no authorization to distribute Plaintiffs' copyrighted recordings from his KaZaA shared folder.

In other words, they're complaining about sharing the MP3s, not making them. The fight against corporate copyright bullies will not be helped by intellectual dishonesty and exaggeration.

Fair enough...

Except that they are claiming that mp3s outside your shared folder are yours, but they are no longer authorized copies once they enter your shared folder?

That's a step beyond claiming that "making available" is piracy, which is a step beyond what most of us accept as piracy.

I do agree with your assessment, though. Nothing is helped by intellectual dishonesty and exaggeration.

Re:Learn how to summarise

There is an 'and' there. But, line 3 of that page says: "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs' copyrighted sound recordings on his computer." and then states that that refers to copies which were made from their original format. So it does seem that they are claiming that possession of mp3s of CDs you own is unauthorized. Unless (and it is a big if) they are saying that possession of mp3s in his shared folder is an unauthorized format. But I can't quite follow that. Page 8 says that space shifting fair use is invalid when it involves distribution to the public. Presumably it could be fair use otherwise?

Re:Learn how to summarise

That is not how I read it and I believe you are being fooled by their deliberate word play. Lets break it down:

"they [the mp3s] are no longer the authorized copies distributed by Plaintiffs"

Don't be fooled by the usage of distributed here. They are not talking about the defendant distributing yet ... that is why the last word is Plaintiffs not Defendants. They are only talking about the copies which he possesses, that happen to be in his shared folder, and claiming that those copies are no longer authorized copies provided by the Plaintiff. In short the only copies authorized are therefore the ones on the CD, and not the ones converted into the compressed .mp3 format.

Now looking at the SECOND part they say:

"Moreover, Defendant had no authorization to distribute Plaintiffs' copyrighted recordings from his KaZaA shared folder."

The key here is first the usage of "Moreover" which is additive as in, 'A'=bad AND 'B'=bad. Not, as you assert, 'A' + 'B' = bad but 'A'bad.

The trick here, IMO is that they crafted this very specifically so as to introduce the idea that the mere production of mp3s is the production of an unauthorized copy. Distribution is also unauthorized. Notice how they didn't say distribution of THOSE mp3s was unauthorized. That is implied from their larger statement that he wasn't allowed to distribute copyrighted recordings regardless of the "authenticity" of the recording. So they have set up two arguments which I will reorder to make it clearer that they are separate:

1) The defendant isn't authorized to distribute copyrighted recordings
2) The defendant was in possession of unauthorized copies of those copyrighted recordings which are unauthorized by the mere fact that they are compressed mp3 copies; regardless of the fact that he owned the CD those copies were generated from.

The end result of this being, the only authorized way to procure and possess "compressed mp3s" would be for them to be distributed by the Plaintiff. That is the implication of the words "they are no longer the authorized copies distributed by Plaintiffs." Because if you buy into that statement it begs the question: how do you get an authorized compressed mp3 version of their copyrighted works.

unauthorized != illegal

They almost certainly were unauthorized. But that doesn't matter, as copyright law does grant you some limited rights to make copies without authorization.

In most jurisdictions these rights would include transferring cd's to mp3's for personal use.

Enforce it to the letter

Mr RIAA lawyer better not have any audio files on his laptop. Better have the judge make sure he has a note from every rights holder. Check his car too. Got an iPod, Mr. Lawyer? How about your kids? Unauthorized ring-tones on your phone?

Let he who is without sin cast the first stone. I'm sure we could find violations by the RIAA and it's members and staff.

Can't touch this? It's discovery time.

That's not what it says

Actually, if you read the document, I think you'll see that it says making MP3s and putting them in the shared folder is unauthorized. It doesn't say it would be unauthorized to make MP3s and put them in a non-shared folder.

Re:That's not what it says

If they were talking about sharing with random people on the Internet they would have a valid point.

Gee, I wonder if that was what they were doing:

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. ... 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. Moreover, Defendant had no authorization to distribute Plaintiffs' copyrighted recordings from his KaZaA shared folder.

Each of the 11 sound recordings on Exhibit A to Plaintiffs' Complaint were stored in the .mp3 format in the shared folder on Defendant's computer hard drive, and each of these eleven files were actually disseminated from Defendant's computer. ... In addition, Defendant unlawfully distributed all 54 of Plaintiffs' Sound Recordings by making unauthorized copies of the recordings available to other KaZaA users for download.

Just because /. says it's true doesn't make it so... and this is just another instance of the submitter being either stupid, careless, or actively dishonest. The "shared folder" was Kazaa.

Intentional posting of misleading headlines

Just to get people to respond and say how stupid and misleading the article is ... is getting quite old. But heck it works and people come back for more every day spitting out the same tired responses again and again and again. It really makes me feel good about wanting to continue reading and posting tired articles/responses on slashdot. Keep up the *fine* work guys.

The RIAAs problem is they made ripped copies *avaliable* via a shared folder. It does not say the act of ripping is illegal.

What I did find interesting was the description of MP3 as a perfect copy. Niquist aside MP3 is a lossy format. Songs in MP3 format are most certainly not a perfect copy of the origional work but they don't degrade unless re-encoded which I think was the real point they were trying to make.

up next

"once the plaintiff stored the CD's in a unlocked cabinet they were no longer authorized copies"...

Makes you wonder why they haven't gone after libraries for "making available" yet...

kdawson strikes again

Yet another misleading kdawson post. I haven't had the urge to filter by editor since the JonKatz days, but I think I'm about there again.

Molehill to Mountain Alert

Unless I can no longer read and correctly understand and interpret English, this is not anything to get excited over. (But most of y'all will, cos otherwise Slashdot would be no fun at all, right?) That one sentence, in context, links the ripping to mp3 format and the "making available" in a shared folder as being one "unauthorized" process. Yes, I would say the sentence is poorly worded and potentially ambiguous, but the intent is clear. If he had ripped the tracks for his own use, and not made them available to others, no one would know or care, and there would be no case here.

Leave it to the denizens of this board, however, to twist bad syntax into something sinister. You would think that we are suddenly in danger of having the mp3 format declared illegal and ripping software impounded. There are plenty of reasons to despise the RIAA, and they are a sufficiently evil organization as it is -- we don't need to paint them as even more of an asshat than they already are.

Clear cut case

FTPDF (From The PDF):

First, Defendant actually distributed the 11 sound recordings listed on Exhibit A to Plaintiffs' Complaint from the KaZaA shared folder on his computer to Plaintiffs' investigator, MediaSentry.

Finally, Defendant acknowledges that he saw evidence of other KaZaA users downloading files from the shared folder on his computer.

Seems pretty clear cut to me. He shared the files in his KaZaA share, and they downloaded some and busted him for it. He even seems to have admitted it.

Though I don't like this:

Second, because online "piracy typically takes place behind closed doors and beyond the watchful eyes of a copyright holder," Warner Bros. Records, Inc. v. Payne, Case No. W-06-CA-051, slip opinion at 7 (W.D. Texas July 17, 2006) (Exhibit B hereto), Plaintiffs should be allowed to prove actual distribution based on circumstantial evidence.

Proof based on circumstantial evidence!?

RIAA - If you stop feeding them they'll go away

I don't think I can make this any simpler: Stop Buying Music from RIAA Members. Its easy, they don't seem to want you to buy their product anyway. Music CDs might or might not play, just like they might or might not infect your PC with rootkits. Legal downloads might or might not play on whatever portable device you have, and they probably wont play on your next one, or your next PC, so what are you spending your money on anyway? Stop Buying Music from RIAA Members.

The RIAA gets its funding from the big labels in addition to these racketeering activities. As SCO has so thoroughly demonstrated, suing your customers is not a sustainable business plan. Cut off the other source of revenue: Music Sales, and they will eventually wither away and die. I am not condoning piracy here, and as a musician its hard to advocate intentionally killing off an industry I've spent a significant part of my life studying, but it simply must be done. It is the only way to rid the planet of what has become a blight on the world. Only then can something better rise up to fill the void. It is a sacrifice we all have to make for the greater good.

Theres a theme here: Stop Buying Music from RIAA Members.

Re:This!

Madness? This. Is. AMERICA!!