RIAA Flubs Chance To Actually Respond To Questions About CD Ripping
from the nice-work,-guys dept
For years, we've been a fairly persistent critic of the RIAA's tactics. It's not, as some incorrectly suggest, because we are "anti-RIAA" or that we somehow dislike the RIAA. Not at all. We simply believe their policies are incredibly damaging. First, they're damaging to fans of music who are suddenly treated like criminals just for wanting to listen to music. Second, they're damaging to musicians, who are being lied to about what business models make sense in a digital world. Most importantly, they're damaging to the very labels that the RIAA represents -- and the fact that the RIAA's continued strategy has resulted in increasing troubles for the major labels it represents as well as major acts defecting left and right at a time when the rest of the industry is thriving, seems to bear that out. In fact, I always find it amusing that providing the RIAA with accurate and useful advice about why its strategy is damaging and even providing alternative strategies could possibly be seen as being "anti-RIAA." It's not. It's anti-"dumb policies" -- policies that hurt everyone, including the record labels. For years, we've been ridiculously optimistic that one day, maybe (just maybe!) the powers that be at the RIAA would wake up, realize what a huge mistake they've been making, and start focusing not on treating fans like criminals, not on sneaking around Washington DC to mislead politicians into passing unnecessary and dangerous laws, but on new business models that actually make everyone better off.That's why it shouldn't be surprising (or "ironic") that we pointed out where the Washington Post and others were wrong in describing a particular lawsuit filed by a record label against Jeffrey Howell. It does no one any good to fight that battle until it's actually necessary. In fact, by saying the RIAA is saying something they have not, it only gives the RIAA more ammo to suggest that those of us who are legitimately critiquing their policies are simply "making stuff up."
So, while I disagree with folks saying that it's impossible to unfairly malign the RIAA, it is rather telling (as pointed out at that same link) to look at how the RIAA has responded to this debate. If they were smart and had any strategic PR sense at all (I know, I know, stop laughing...), someone at the RIAA should have come out quickly and made a clear statement saying: "Ripping CDs for personal use is, and always has been, perfectly legal. We will not, and have not, sued anyone who does that." It's an easy, proactive statement that the RIAA could make. It wouldn't be conceding anything, as it's a factual statement based on the law. Instead, the RIAA has remained mostly quiet or made more careful statements, rather than just coming out and saying: "Yes, you can rip your CDs for personal use." And, for that, the RIAA should absolutely be maligned -- not because of any hatred or anti-RIAA sentiment -- but because it's just dumb and self-defeating.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, fair use, howell case, ray beckerman, riaa, ripping
Companies: riaa
Reader Comments
Subscribe: RSS
View by: Time | Thread
Ummmm?
[ link to this | view in thread ]
Free Advice
I don't think you're anti 'dumb policies' - you're pro consumer or pro market. I doubt you think you'll convince anyone at the RIAA that their policies are dumb; you know that free advice is worth what you pay for it.
What you're bringing to the table is a reasonable argument about copyright that's better than "it's so easy to copy so I should just be able to take it" or "they play it on the radio for free so why can't I just take it" - and of course "they're just big companies."
But in the end, your ideas are anti-RIAA because the RIAA is an organization chartered to protect the existing business model of record companies through political and legal means, and to maximize the effects of their effort through PR that spreads fear, uncertianty, and doubt.
You may argue that their existance is or their tactics are paradoxical, but if the more the RIAA is successful with its political agenda, the more likely a victory is. So are you really 'pro political action to counteract the recording and film lobbies?' Then the best place to take the concepts mainstream is in the upcoming presidential election.
[ link to this | view in thread ]
Hey, that's what I said
I also agree with you that this battle - if I may call it so - is not about fighting the RIAA; it's about pointing out strategies alternative to theirs. I've been pushing several of my ideas with this regard over the years; one is the idea of "positive DRM", and the other is the notion of competing with piracy instead of fighting piracy. I'm treating the music industry as a patient that needs help; not an enemy that needs to be destroyed.
[ link to this | view in thread ]
[ link to this | view in thread ]
--
That is the point though, they don't believe ripping CDs is legal for personal use. They stated so in court cases, and they've always made sure to leave that little bit out whenever precedent is made. The RIAA wants you to buy a CD, then buy the MP3, and then buy the ringtone. This way they get to charge you three times rather than just once. The RIAA doesn't understand the fact that you aren't wanting to pay for the same song three times, and as long as they misunderstand that fact and attempt to cash in on it, they're going to keep going down the tubes.
[ link to this | view in thread ]
He cannot say anything else...
The RIAA made many irrevocable mistakes in their futile attempt to sustain their current extremely profitable busines model.
And I don't really blame them. If I had a business model that wonderfully profitable, I'd do nearly everything to keep it alive too.
[ link to this | view in thread ]
Re: He cannot say anything else...
Supposed to be 'cannot', of course.
[ link to this | view in thread ]
Call a spade a spade already
[ link to this | view in thread ]
it's because they /ARE/ saying that
[ link to this | view in thread ]
If they are going to sue people why not start with the people who invented the transistor.
From the words of John Wayne... Lower than a snakes belly in a wagon rut.
Watch out folks Microsoft and the RIAA are now in your automobile.
Is there a copyright on the proper use of toilet paper yet?
[ link to this | view in thread ]
Actually, they can't
The RIAA can point to existing cases when making claims, and make assurances about what it will, or will not do based on certain circumstances.
However, the RIAA cannot make the statement about what is or is not legal, because only the court systems can, and should, make statements about the legality of an action. The court systems can do so, only, based on an existing case and through court findings and judgments.
Now, since it is very unlikely that the RIAA will ever take a person to court for having ripped their CDs to their computer for loading on to their iPod or other _personal_ use (ie not P2P shared use) this specific issue is unlikely to ever go in front a judge for their to be a definitive finding. And, no, Hotaling is not the same thing. Even William Patry doesn't say directly that copying for personal use is legal under copyright law. He gives it as his opinion that this is so.
People do have choices. If they don't like the RIAA, the don't have to purchase music from companies represented by the RIAA. There are many musicians that release their works independently.
As for the so-called 'intentionally' misleading text in the brief, you have to remember that there were several other filings in this case before the brief was published, that were being answered in that brief. The RIAA was responding based on previous filings and motions. Don't want to believe me? Get a PACER account, go see for yourselves.
[ link to this | view in thread ]
RIAA & Protecting Business Models
Here is a funny comic about the RIAA that is out today.
http://www.geekculture.com/joyoftech/joyarchives/1053.html
Also, here is an article about Edison and protecting his business model he had for Direct Current.
http://www.wired.com/science/discoveries/news/2008/01/dayintech_0104
[ link to this | view in thread ]
It's Okay to be Anti-RIAA
If you're completely against everything the organization does, that is the definition of being anti-[that organization].
So, because of their principles and their actions to-date, you are anti-RIAA. We recognize that could change, especially if the RIAA changes. You might even become pro-RIAA if they were doing the right things. For now, you're anti-RIAA. So am I. It's okay.
[ link to this | view in thread ]
Re: Ummmm?
I'm on the same page with Mike here.
[ link to this | view in thread ]
Maybe you need to re-read what the RIAA said
All the defenders are jumping to the fact the RIAA brief said "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." but are ignoring what they left out. The RIAA did not say "and they are in his P2P shared folder" but "and they are in his shared folder" which makes a much broader assertion. Since we're talking literal Lawyers here making an assertion we should be safe to say that this statement was vetted by numerous folks who would have pointed out the lack of the precise wording on a legal document.
If you honestly believe that the RIAA should be defended for their statement feel free to do so but first look at your operating system and ask yourself which folders are not "shared". Then ask yourself if a high priced legal firm with a full staff to review every document before release would have accidentally left out that reference to P2P in their statement.
[ link to this | view in thread ]
Is ripping actually legal? Are you a lawyer?
Here in New Zealand there is a lot more 'doubt' that ripping your own CD's to MP3's is actually legal. Everybody does it, nobody has ever been sued for it AFAIK, but the Ministry of Economic Development tried to have our copyright law amended to clearly allow 'private copying for personal use' and the recording industry fought the change tooth and nail.
[ link to this | view in thread ]
Re: Re: Ummmm?
I think Jason put it best. I mean there is nothing being against the RIAA, but just say that you are. I mean Mike is trying to be unbiased, but he is not everyone knows he dislikes the RIAA.
[ link to this | view in thread ]
Re: It's Okay to be Anti-RIAA
Again, I'm confused as to how recommending a better course of action and better business models for the RIAA is "anti-RIAA."
Please explain.
If you're completely against everything the organization does, that is the definition of being anti-[that organization].
I'm not against everything they do. I'm against the stupid things they do.
[ link to this | view in thread ]
Re: Re: It's Okay to be Anti-RIAA
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Maybe you need to re-read what the RIAA said
I agree with you.
And I have yet to see one person who is defending what the RIAA said and attacking Marc Fisher's absolutely correct reading of it, make reference to
(a) the actual question the judge was asking about the presence of "unlawful" copies on the defendant's computer,
(b) the context in which he was asking it, or
(c) the complete answer the RIAA gave to the question.
They keep citing other parts of the brief which have nothing to do with that particular question and the RIAA's answer to it.
The actual question and answer are:
Question:
Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"
Answer:
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.
It is absolutely bizarre in my opinion to focus on 8 words in the answer and ignore all the rest of it. That is totally irrational. Why on earth would they have written all of that if they didn't mean it?
It is likewise bizarre to forget, as David Kravetz of Wired.com just reminded us today, that it was a major factor in the Jammie Thomas trial -- where the RIAA picked up its $220,000 jury verdict -- to make the point on direct examination that copying cd's onto one's hard drive is unlawful, and then to viciously crossexamine Jammie Thomas on the fact that she hadn't gotten permission from the record companies to rip her personal cd's onto her computer. Kravetz was at the trial all day every day, from gavel to gavel.
[ link to this | view in thread ]
A Broken Business Model With Large Profit Margins
If I am a majority stock holder in an oil company that is making $500 million for me each year, why would I support green energy? The change-management to such business models would surely lose me hundreds of millions of dollars, and who is to say that my 'green' company would sail after the equity injection periods?
This is the plight of humanity- fighting with wealthy people who are protecting huge revenue streams that flow from old business models. Record companies are not so much 'stupid', as they are fighting to preserve their 'CURRENT' revenue streams at the expense of better ideas. Let's face it- they are not well dug-in on the 'better ideas', or they would make the change.
The bottom line here, is that we all must put up with this fight. But, it's a 'LEGAL FIGHT', not a market fight- they cannot compete openly on the market. That's why, like a child who cries to mammy about a stronger sibling, they are using bad laws to preserve their meal tickets- outdated meal tickets.
Melted Metal Web Radio
http://www.meltedmetal.com/
[ link to this | view in thread ]
Re: Re: Maybe you need to re-read what the RIAA sa
"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"
The RIAA stated that the above says no such thing and focuses on Fisher leaving out the words about the MP3's being placed in the shared folder. The RIAA is trying to win the argument by trying to say that this means its placing the MP3's in the shared folder that is illegal, but that is not the context of the statement in the brief. Since this case is about illegal distribution it is the plaintiffs contention that placing the MP3's in the shared folder facilitates illegal distribution.
However, everyone leaping to the RIAA's defense here is missing a very vital point in the statement and that is what the RIAA considers an authorized copy. In the statement cited above, Sherman would like you to believe that they meant placing the MP3's into the shared folder made them unauthorized copies, but the brief clearly states that the once compressed and placed in the shared folder they were nolonger the AUTHORIZED COPIES DISTRIBUTED BY THE PLAINTIFF". The authorized copy is the CD. When you copy a CD to your computer, the RIAA for copyright purposes considers these to be unauthorized copies, no matter what folder they are in. It is illegal to make unauthorized copies of copyrighted work except in very specific situations. On the RIAA's own site they state that the only legal copies you can make are to cassettes or Audio CDR's on which a royalty fee has been paid. They do not recognize a "right" to copy CD's but copying for your own use will not generally get you in trouble as they haven't yet ever prosecuted anyone for copying CD's for their own use. They will not say its technically illegal as precedent has not yet been set in Federal court. Sherman of the RIAA refused to explicitly state that the RIAA considers copying CD's to a computer or other device for a consumers own use to be legal. If he won't say they consider it legal then that must mean they consider it illegal.
[ link to this | view in thread ]
Of course you are right JohnnyL. The proof is that at the Capitol v. Thomas trial they (a) stated it was illegal, and (b) brutally crossexamined Jammie Thomas for copying her cd's to the hard drive without their permission.
[ link to this | view in thread ]
Go anon coward
[ link to this | view in thread ]