RIAA: Ripping CDs to iPod not 'Fair Use'

dotpavan writes "EFF has this article about RIAA saying that ripping CDs and backing them up does not come under Fair use. Ars Technica also reports on this, by quoting, "The [submitted arguments in favor of granting exemptions to the DMCA] provide no arguments or legal authority that making back up copies of CDs is a noninfringing use. In addition, the submissions provide no evidence that access controls are currently preventing them from making back up copies of CDs or that they are likely to do so in the future. Myriad online downloading services are available and offer varying types of digital rights management alternatives. For example, the Apple FairPlay technology allows users to make a limited number of copies for personal use. Presumably, consumers concerned with the ability to make back up copies would choose to purchase music from a service that allowed such copying. Even if CDs do become damaged, replacements are readily available at affordable prices. Similar to the motion picture industry, the recording industry has faced, in online piracy, a direct attack on its ability to enjoy its copyrights.""

Audio Home Recording Act of 1992

[NutscrapeSucks]

Look it up. RIAA sued Creative in the early days of MP3 players and lost.

Congress was not impressed with their arguments

[lheal]

January 24 on C-SPAN there were hearings on Senator Smith's Broadcast Flag bill.

The RIAA spokesman said the Broadcast Flag was needed because with HD radio
(which is just digitial radio), now people could record music off the air
without paying for it. They want to stop that. They put forth the CD ripping argument, too, saying there was nothing to prevent people from copying songs willy-nilly and sharing them, denying royalties to the struggling artists.

The Senators didn't like his view at all. It seems that many of them have
IPods, and like to grab songs, interviews, and other audio so they can listen to
them on the plane! They like their Dean Martin as much as the kids like their Ice Masta Jam.

I was pleased to see liberals and conservatives both on the side of fair use,
rather than on the side of corporate profit. I think they've been getting mail.

Re:That's simply not true

[Vo0k]

We had a damaged legal copy of Windows CD at the university. The replacement disk costed over twice as much as the local (commercial) pirate charges for the CD and over 1/3 of the full licensed version.
We bought the CD from the pirate and later claimed it was a backup copy from before the original got scratched.

Dear RIAA,

[Jerk City Troll]

16 million iPod sales in 2005 alone. Nearly one billion songs purchased from iTMS. 90% and 70% market share respectively. Just thought I'd remind you that the market has spoken and you're old. In closing, screw you.

Sincerely,
Everyone

Contradictions...

[morgdx]

From Metro-Goldwyn-Mayer Studios v Grokster, Donald Verrilli representing the petitioners:

...and let me pick out the iPod as one, because it's the most current example, I guess. From the moment that device was introduced, it was obvious that there were very significant lawful commercial uses for it. And let me clarify something I think is unclear from the amicus briefs. 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...

Funny how I can't find this on anyone's website anymore

http://www.supremecourtus.gov/oral_arguments/argum ent_transcripts/04-480.pdf [supremecourtus.gov]

Re:Buy it again, Sam.

[Anonymous Coward]

False. There are many recordings that have gone out of print and probably won't reappear, especially in the classical genre. Try finding Philip Pickett's recording of Susato's "Dansereye" (released 1994, just twelve years ago), or Horenstein's recording of Mahler's Third, considered to be one of, if not THE best, interpretations. (Yes, it's available from Amazon.uk, but not in America.) The Boston Symphony Chamber Players' recording of Stravinsky's "The Soldier's Tale", with John Gielgud, Tom Courtenay, and Ron Moody has never made it onto CD from LP. THAT is an awesome interpretation. And on the Celtic side, the early LP recordings of the Boys of the Lough are unlikely to ever appear on CD. And those are just a few examples from my own library!

So unless you buy nothing but popular crap, you had better back up your recordings or they will be lost to everyone forever if the RIAA wins this fight.

Re:I hope this comes to court

[lost_packet]

technically, only MGM admitted as much

At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement. MGM's answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal. But they've now conceded the contrary in open court, so if they actually win this case they'll be barred from challenging "ripping" in the future under the doctrine of judicial estoppel. In any event, though, MGM's iPod example did exactly what their proposed standard expressly doesn't do: it evaluated the legality of the invention based on the knowledge available to the inventor at the time, not from a post hoc perspective that asks how the invention is subsequently marketed or what business models later grow up around it.

from http://blogs.law.harvard.edu/tka/2005/03/29#a53 [harvard.edu]

AHRA

[omeg]

"In short, the reported legislation [Section 1008] would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use." (House Report No. 102-780(I), August 4, 1992)

See Audio Home Recording Act [wikipedia.org] for more information.

you FUD-spreading tool

[RMH101]

iTunes ripped CDs have zero DRM in them. nothing. nada. iTunes *downloaded* tunes do.

not under oath, not perjury

[spiritraveller]

Neither statement is perjury, because neither statement is made under oath... These statements are just arguments made by the lawyers. One is made in a brief and the other was made in oral arguments in a completely different case, with different parties.

As a lawyer, I can say whatever I want to a court, and the court knows that. If I make a bold statement that turns out to be false, it may affect my credibility with the court; it may cause me to be found in contempt of court; it may ruin my reputation and cause me to hang my head in shame... but it ain't perjury.

Realize also, that these are statements of what the lawyer believes the law to be. They aren't statements of "this happened" or "that happened". It's the same as when the Independent Counsel asked Clinton "Is it true or not that you are the highest law enforcement officer in the country?" It's a question of legal opinion, and not a factual matter, so it isn't perjury.

Now, when you get sworn in and you say "I didn't have sex with that woman (koala bear) (llama) (whatever the case may be)." That would be perjury.

This won't hold up in court

[Mistshadow2k4]

From TFA:""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."

They said this in front of the Supreme Court. Legally, they don't have a leg to stand on.

Re:Dear RIAA,

[Anonymous Coward]

What you seem to forget is that they own the music. They make money when someone buys a song from itunes. They don't give a fuck what medium you buy it on. There just trying to make it so you have to pay for each type of medium.

Apple has worked very hard to keep the RIAA happy. With every new release of itunes, and ipod software, they have made more and more restrictions on the number of ipods you can connect and how you move songs to and from your ipods. I'm just glad I still have the old cd which came with mine.

Quick, RIAA, fix your website!

[yeremein]

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

Source [riaa.com]

Re:Well...

[numbski]

There's just one problem with that.

If you're over 19, you're no longer the RIAA's target demographic anymore. Quite literally:

"It's not you Marty, it's your kids! We've got to do something about your kids!"

We've got to educate our 10-19 year olds not to give any more money to the RIAA.

Good luck with that. :(

Re:Audio Home Recording Act of 1992

[superid]

It's here [wikipedia.org]

Now IANAL, but from what I've read it seems that you really DO NOT have the right to make copies of anything you buy/own. The act states that you will not be prosecuted for doing so.

Anyone read RIAA.com?

[Kcowolf]

From the "Ask the RIAA" section of their website (http://www.riaa.com/issues/ask/default.asp#stand [riaa.com]) :

What is your stand on MP3?

This is one of those urban myths like alligators in the toilet. MP3 is just a technology and the technology itself never did anything wrong! There are lots of legal MP3s from great artists on many, many online sites. The problem is that some people use MP3 to take one copy of an album and make that copy available on the Internet for hundreds of thousands of people. That's not fair. If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. But the fact that technology exists to enable unlimited Internet distribution of music copies doesn't make it right. (emphasis mine)

Re:Contradictions...

[cthenkel]

Well, its still up on their website. Someone should let their webmaster know that their site needs updating to reflect the RIAA's new position on ripping CDs.

http://www.riaa.com/issues/ask/default.asp#stand [riaa.com]

"If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail."

Indie labels?

[eltonito]

I keep seeing comments to the effect of "I'm never buying music again..." and I think this is very short-sighted.

I'm here to tell you the solution is to buy *more* music...

...from non-RIAA member, independent labels. There are indie labels out there for nearly every genre. They tend to treat their artists more fairly and nearly every indie label respects their customers and treats them like... well, customers instead of cattle or criminals.

I could give you a million positive experiences I've had with indie labels, but I don't want to waste too much time on an RIAA post. A really great summary example is that I've never IM'ed with a major label owner about how I included their music on a compilation for my friends and had the major label be excited that I was helping to promote their bands and label.

The best way to piss off the RIAA isn't to pirate their music or simply stop buying it. The best way to piss them off is to shift the market by taking your patronage and your money to non-RIAA indies.

The RIAA can go to hell.

[MaWeiTao]

I haven't yet bought an MP3 online and I don't plan to. I'd much rather buy a CD where I have something physical that I can hold onto for years. I make MP3s from it, allowing me to listen, conveniently, to all my music at work or on my iPod. I don't have to put any wear on the CD either by playing it or carrying it around everywhere, but I've always got the CD on hand if I do want to pop it into a CD player. And I don't have the hassle of having to back up MP3s, if it's even possible with they way their use is restricted.

I made the copies for my own convenience. I almost never copy anything for anyone else and if I get my hands on some MP3s I really like I go online and order the CD.

But then I don't listen to popular music at all; anything close to mainstream I completely avoid. And after years of buying CDs and occassionally ending up with crap, I no go out of my way to ensure that at least half the music on the CD I enjoy. So far I haven't really encountered any copy-protection nonsense, but we'll see how long that lasts.

Of course, the more I see this sort of bullshit from the RIAA the less I want to buy music. Why should I have to buy multiple copies of the same music? It's simply about convenience. I've got a PC, cd player at home and in my car, and an mp3 player. Why shouldn't I be able to transfer my music amongst all these platforms?

Every time some new technology is developed people talk like it's going to be a great enabler. It's going to make things easier for everyone, without any of the hassles we've dealt with in the past. Until the scumbags show up, suddenly everything we use is crippled, hindered by absurd licensing agreements, restrictive contracts and all kinds of ridiculous fees and charges that border on extortion. If there's any way to make a few extra cents these companies will figure out how to do it. Kind of like the mobile phone industry in the US.

The RIAA can go to hell for all I care. Unfortunately, by trying to screw the music industry, it's not the executives who feel it, it's all the regular people like the rest of us who feel the consequences. Regardless, something needs to be done about this sort of garbage.

Re:Baloney. How did that get modded up?

[soupdevil]

But CDs created from iTMS files are inferior to regular CDs in several ways. They are CDRs, with higher fail rates, they are lower quality audio, and they don't come with reference materials like images, track listings, artist's notes, etc.

Fuck the RIAA

[alfredo]

I can appreciate some restrictions on use of copyright material, but they want too much control over products we pay inflated prices for. They say we are hurting the artist, but what really hurts the artist are the draconian and deceptive contracts the artists have to work under. You can have a Platinum recording and end up in debt to the record company because they shift the financial risks to the artist and assume none for themselves. Many of your favorite artist barely make a living wage even though they are generating millions for their labels.

Ask Toni Braxton. She made millions for her record company and ended up being in debt to her label.

Re:Big surprise

[kalbzayn]

They may make more money per track, but if I'm only buying one track instead of the 12-13 on the album, then they are probably losing some profit on the overall product. I haven't bought a CD in over a year now. I just download the individual songs I want. I use iTunes because I've decided that .99 for a song that I like is a fair price for me. The last whole CD I bought, I downloaded. The only reason I bought the whole CD is it was a present for my wife.

Re:you FUD-spreading tool

[Pauley_24]

That's actually exactly what he meant, I believe... If you buy a CD, and rip that into the iTunes player, even in AAC, there's no DRM on the file. The only DRM-wrapped AAC files in iTunes are ones purchased from the iTunes Music Store.

-- Pauley

Re:Baloney. How did that get modded up?

[vertinox]

Apple specifically tells you to back your songs up the moment you purchase them by burning them onto an audio CD with the iTunes software itself!

Yeah... Ermm... Well, this isn't a great backup method as it sounds. Firstly, you taking a lossy codec and recoding it back to 16-bit 44khz (from whatever audio you original have). Then if you want to get it back to your iPod (after a catostrophic computer crash and you formatted your iPod by accident) you have to re-encode it back to a lossy format (in which you loose a crap load of quality). I've done this way before iTunes when a computer crashed and the only backups of songs were... ermm... audio cds that I burned from Music Match from mp3s. I can tell a difference in the audio when I get it back to MP3 (even at 256kps).

Secondly, this is a big painful bitch to go back and rename all the mp3s since chances are the cds you burned aren't the exact albums and they don't match anything on Gracenote/CDDB etc and you have manually guess what each track is from and type the song and artist etct in the mp3 tag and file name.

A really big big royal pain in the ass when your computer crashes and you have a dead hard drive.

I believe you can backup the auido to a data disc of AACs or mp3s, however this does not remove the DRM from the files. So you still can't get the files to non-iPod audio devices and if you hose your computer and reinstall and in the process appear to hose you iTunes account those DRM'd files on your backup cds might be worthless.

Personally, I buy cds and rip them at highest quality (huge mp3s) so I can play them on my iPod and share out my iTunes folder to my Turtlebeach Audio Tron so I can listen them on my stereo. The Audiotron can't read DRM'd iTunes files so its kind of pointless for me to buy from there even though I have been tempted on trying to get a song out of my head. Chances are the next day I've gone to the local indie record store and bought it anyways.

The only thing I can see DRM doing for me is removing features with my listening experience and forcing me to buy the same song twice.

No thanks. I'll be old fashioned for right now.

Re:Big surprise

[homer_ca]

This is an old assertion by the RIAA. Repeating it now doesn't make it any more true. Even Sen. Orrin Hatch, architect of the DMCA, disagreed in a 2000 Senate hearing:

http://web.archive.org/web/20010531100247/http://g areth.membrane.com/leflawnet/hatch.html [archive.org]

A skeptical Hatch then turned to the Recording Industry Association of America president, Hilary Rosen, a surprise addition to the roster of witnesses. Wedging herself into a space next to MP3.com head Michael Robertson, whom the RIAA recently helped to sue, Rosen found herself subjected to the kind of puzzled questions about fair use -- a notorious legal morass -- that millions of music owners have been asking themselves for the last few months.

"Can I make a copy of a CD that I buy and put it into a car?" asked Hatch. When Rosen hemmed and hawed, Hatch muttered, "The answer is yes."

"Is it fair use to give the copy to my wife for her car?" Hatch continued. "Is it fair use for me to rip a CD? Is it fair use if (a computer network) decides for efficiency reasons that one copy is sufficient to serve for storage, instead of keeping 200 separate copies, is that fair use?"

"None of these is fair use," Rosen eventually replied. She argued that musicians' willingness to "tolerate" people making copies was an instance of "no good deed goes unpunished."

Re:What about...

[pNutz]

You could just buy music from people who respect your fair use rights, you know.

emusic.com
audiolunchbox.com
bleep.com
calabashmusic.com ... and some others that sell MP3's of independent music.

It can be annoying, like how you can only get the first two Green Day albums, or Rev. Horton Heat's 2 indie releases (out of 10 total or so). No Nirvana, Beck, mainstream rap and country, or basically anything that plays on the radio.

Then again, you can get The Dismemberment Plan, Pinback, Modest Mouse (older), Death Cab for Cutie, Sufjan Stevens, MF Doom, Ninja Tune, Classical, Jazz, world music, blues, etc.

Re:Big surprise

[Conception]

"In my understadnding, once you buy a CD, you have a license to play it's songs in any format"

This is actually a big problem in understanding. You don't have a license to play songs anywhere. YOU OWN IT. You can do anything you want with it. It is -not- licensed to you. It's like saying the apple you buy at the store is licensed to you. No. You just bought an apple. Same goes for CDs. The RIAA is trying, and seems to be winning, the idea that you are buying and owning something. That's the battle they are fighting, and winning I think.

Re:weird Question

[ryusen]

My understanding is the RIAA is a joint industry group or many different record companies (most of them owned by the big five). They are responsible for lobbying nad various legal wranglings. This gives the actual record industry a slight buffer from the inane actions of the RIAA.
They are of course looking to lock out ALL copyrights, because that's what benifits their members the most. That it might harm or hurt other eneties is meaningless.

Re:Big surprise

[TheSpoom]

While on the whole your argument has value, there are a few problems, the main one of which is this: in order for such a model to exist, the IRA or a new IRA-like government institution would have to exist to keep track of when you made your money back from said product. Also, I don't think "investment + 10%" is enough of an incentive for companies to use this model. Investment + 50% maybe, or perhaps investment * 2.

In the end, I think copyright should exist, but be vastly more limited than it is now, especially in time span; life + 70 years is WAY too long, especially considering that 50% of businesses fail in their first year of operation. Something like the Creative Commons Founders' Copyright [creativecommons.org] would do much better and allow things to enter the public domain naturally, while still allowing businesses to be profitable as long as they're providing value to the public.