Marc Fisher’s article in the Sunday Washington Post about the latest development in the Recording Industry Association of America’s campaign to sue every last person in America has taken on an interesting life of its own. Wrote Fisher:
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.
The headline on the article was “Download Uproar: Record Industry Goes After Personal Use.” As the story spread, the claims only got stronger. “RIAA Says No To Transferring Legally Purchased Music From CD To PC,” was HuffPo’s headline. “We’re All Thieves to the RIAA,” was the word at Motley Fool. And one of my colleagues just forwarded me an e-mail from a PR guy that read, in part:
The RIAA recently filed suit against Scottsdale, Arizona resident Jeffrey Howell for his music library on his personal computer. His extensive catalog of over 2,000 recordings was the source of the suit with the RIAA stating that he had violated the law by illegally importing these records onto his computer after he had legally purchased them at a music retailer.
That’s not quite right. In reality, the RIAA’s case against Howell is for putting the music in a KaZaA folder that others could access, not for copying the music from CDs. But in a filing on Dec. 7, a lawyer representing Atlantic Records did state that, “Once Defendant converted Plaintiff’s recording into the compressed .mp3 format and they are in his shared folder, they no longer are the authorized copies distributed by Plaintiffs.”
Ray Beckerman, a copyright lawyer in New York who is defending several people targeted by the RIAA, saw this as a sneaky way to get a judge to agree that that copying songs from a CD onto a computer is a violation, and wrote about it on his blog in December. “They’re trying to take advantage of a situation where a defendant has no lawyer, trying to get an Arizona judge to use it in his ruling, … and then they’ll cite it,” he told me when I called him this afternoon.
That’s his interpretation. Others, among them Google senior copyright counsel and blogger William Patry, disagree. “The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one’s hard drive and is never shared is infringement,” he wrote.
The RIAA, not surprisingly, endorsed Patry’s version of events. “This case is about the illegal distribution of copyrighted songs on a peer-to-peer network, not making copies of legally acquired music for personal use,” spokesman Jonathan Lamy told CNET. But there is other evidence that the RIAA is quietly trying to redefine copyright law to call CD ripping into question. Fisher’s article cites a Sony lawyer saying at a recent trial that “when an individual makes a copy of a song for himself, I suppose we can say he stole a song.” And in a regulatory filing last year, the RIAA argued:
Nor does the fact that permission to make a copy in particular circumstances is often or even routinely granted, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization.
So what’s the real story? I think the lawyers at the RIAA would be thrilled if they could get a judge to agree that copying music from a CD you bought onto your own computer is a copyright violation, in part because it would make it so much easier for them to win their cases against people who they claim have been disseminating music. But that they would actually sue people for doing nothing but ripping songs from a CD seems a bit far-fetched. Then they really would have to sue every person in America.
It’s been fascinating to watch how this story has been propagated. In the general-interest media and blogosphere, the RIAA-will-sue-you-for-copying-legally-purchased-music-onto-your-computer claim has been propagated without much questioning. Among techies, though–even though they all hate the RIAA–the Patry interpretation quickly gained the upper hand. One CNET writer is even demanding that the Washington Post print a correction. I don’t think Fisher actually wrote anything that was untrue about the Howell case, although he probably could have explained it better. (I probably could have explained it better, too.)