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...'"

Comments

Learn how to summarise

[bigHairyDog]

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.

Re:Learn how to summarise

[ifakemyadd]

I agree, and had similar thoughts upon reading the line about sharing, which is different than copying. It is interesting how the post persuades the intent to share was strictly with his wife. I'm not sure how joint property really works in such cases, but if one considers that the two share the physical property of the cd, then wouldn't they be able to share the legally backed up versions as well? Or when they both listen to the cd, does one voilate copyright? Or is it only if they BOTH listen at the same time (which would seem like the only true violation the digital form may gain over the physical one, as far as legal precedent is concerned).

I guess it goes back to that same old, same old, "does enabling copyright infringement constitute the act itself?" If I remember correctly, the recent answer is no. (Something about an old judgment formerly used in favor of the responsibility of large cable companies. Point is I suppose if they ever both listened to the music at the same time, then that's probably infringement, and everything else shouldn't be. But that's just my intuition

And when you accept that much, then you have to actually prove such an act ever occurred ;-P

Re:Learn how to summarise

[Jumperalex]

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

[Per Abrahamsen]

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.

Copying for PRIVATE use is copyright infringement?

[mark-t]

Technically, that would mean that simply mentally recalling your experience of a copyrighted presentation is copyright infringement then, as you are reproducing that experience for yourself without authorization.

How the heck can even the RIAA not see how utterly stupid it is to say that private copying is copyright infringement?

I heavily advocate copyright, and I even applaud a lot of the RIAA's attempts to try to crack down on cases where genuine infringement is occurring (ie, in cases where unauthorized copies are being shared or distributed), but this is just plain asinine.

That's not what it says

[harlows_monkeys]

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

[Anonymous Coward]

Sharing the MP3 files on a machine with access to the Internet is clearly the intent to redistribute without the permission of the copyright owner (i.e., the artist, the label). I note that even programs like iTunes don't automatically create a share to the Internet for the folder containing the songs that have been downloaded from iTunes.

Downloading MP3's from a share not authorized by the artist or label is the obvious equivalent of theft (i.e., obtaining the music via a distribution method other than how it was originally distributed by the artist or label). Obviously, if the artist provides the music via download only, then downloading from the artist's authorized download share is legal.

That's how I'm able to understand it, and I have a hard time understanding why others can't.

Re:That's not what it says

[EvanED]

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

[Anonymous Coward]

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.

Molehill to Mountain Alert

[Stanislav_J]

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.

Re:Fair use!!!

[Anonymous Coward]

You people are missing the point of the lawyers argument. It is not that this person is not allowed to rip his cds. The operative part of the brief has to do with the "shared folder". Once you share it, that is distribution of copyrighted material that is not your own and that is against the law. And sad to say that without legal representation the defendant is screwed, especially in Arizona.

Re:labeling?

[Sarastrobert]

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

Re:Fair use!!!

[fatrat]

DG get it. Deutsche Grammophon Gesellschaft supplies 380k mp3s with pdf format booklets and album art. All for less than the physical cd. I've bought several things from them already and intend to buy more.

RTFA!!! - Re:Fair use!!!

[scooter.higher]

The Fair Use argument was negated when he shared them on KaZaA - RTFA, and look at page 15 that is even mentioned in the summary.

But let me point out what I believe ruins the Fair Use argument (IANAL):

    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.

Re:Um...September 4: Summary judgement

[NewYorkCountryLawyer]

It was decided against Howell initially. Then Mr. Howell submitted a motion for "reconsideration", in which he submitted some of the briefs from other cases. The Court granted the reconsideration motion and vacated its prior order.

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

[Enry]

Don't forget Magnatune. Large selection of music, very inexpensive, plenty of download formats, and 50% of what you pay goes directly to the artist.

US copyright law's definition of "public"

[tepples]

Our license to this music clearly states that it is for personal use. Copyright law makes clear that this only grants license to one person Citation needed. U.S. copyright law, 17 USC chapter 1, defines the "public" to include "a substantial number of persons outside of a normal circle of a family and its social acquaintances". So one's spouse is not the public. The exclusive rights of distribution and performance under section 106(3) and 106(4) apply only to distribution and performance to the public.

Re:Fair use!!!

[bigmouth_strikes]

> How are they getting us to think that sharing culture means stealing?
>
> Sorry guys, but sharing is not illegal (even if you share using devilish Kazaa).

Sharing "culture" isn't stealing nor illegal, as long as the copyright owner of said culture is OK with it. Making a copy of music you've purchased - perhaps an audio tape - and giving it to a friend, is not OK with many copyright owners and in that case it is indeed illegal since it would constitute 'copyright infringement'.

So you're statement that "sharing is not illegal" is incorrect; it depends on the copyright of what is being shared.

Re:Fair use!!!

[TapeCutter]

Indeed, the quote in the summary has the collary - "and they are in his shared folder". My idea of fair use would be cutting a CD for your mum not distribution to the entire planet. BTW: This doesn't mean I agree with their "king canute" tactics but until the laws and treaties catch up with the technological change, they do have a point.

Re:Grow up

[Anonymous Coward]

Yes, it is circumstantial.
Direct evidence would be video of you striking the blows that killed him.

http://en.wikipedia.org/wiki/Circumstantial_evidence

The fact that you confuse the two, proves my point that circumstantial evidence can be pretty damning.

NOT A TROLL!

[NiteShaed]

You know, I'm really sick of people getting mod points and using troll on anything they disagree with. You don't agree with what bigmouth_strikes said? Fine, reply and tell him why you think he's wrong, but I don't see anything in his post that deserves a troll mod.

FWIW bigmouth, good post. I wonder if I'll get modded troll now too?

Re:Fair use!!!

[NewYorkCountryLawyer]

it seems like the RIAA isn't actually claiming that the fact that he ripped them makes them unauthorized, but the fact that they're in his "shared" folder makes them unauthorized. Don't you think the RIAA lawyers are clever enough to have said that, if that's what they intended to say? The judge asked them if the copies on the computer were unauthorized copies. They said yes. He wasn't asking whether what was done with the copies was unauthorized. He was asking whether the making of the copies was unauthorized. (The reason he was asking that was that the Hotaling case has been distinguished on the ground that the copies allegedly being distributed were admittedly illegal copies. UNLIKE the copies in this case, which were all authorized copies.).

Re:Fair use!!!

[NewYorkCountryLawyer]

The brief was in response to the judge's questions. One of the questions was in substance 'do you content that the copies themselves were unauthorized?'. That question had nothing to do with what Mr. Howell did with the copies afterwards. That was a separate issue.

Read the brief more carefully

[Anonymous Coward]

This post is the reason I refer to the web as the "MISinformation superhighway." The RIAA lawyers are *not* arguing that ripping CD's is a copyright infringment. They are saying that ripping CD's coupled with placing them in a shared folder is a copyright infringement. The key is the shared folder, which allows for distribution of the music files. It's the distribution that violates the copyright, not the ripping.

Re:The original /. post misstates the complaint

[NewYorkCountryLawyer]

Dear "cyphergirl",

The reasons I said "troll alert" are
1. the user just signed up today
2. the post misstates the contents of the brief... nowhere in the brief does it contain any of the statements which he or she attributed to it.

The troll said

The complaint is not saying that ripping MP3s from your CDs is an infringement. It, in fact, acknowledges that doing so is fair use. Where does the brief or the "complaint" say anything of the kind? It then goes on to say

it continues by saying that then making those MP3s available for download by others destroys that fair use. Where in the brief or the "complaint" is that statement contained?

Obviously you never read the brief either.

I notice that you are littering my blog with similarly sloppy comments there under your user id "nothing noteworthy". Please either do your homework, or stop wasting my time.

Thank you.

Re:up next

[NewYorkCountryLawyer]

Infringement of the distribution right entails (a) dissemination (b) of copies or phonorecords (c) to the public (d) by sale or other transfer of ownership, or by license, lease, or lending. All 4 components are required. The RIAA can show none of the 4.