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RIAA Not Suing Over CD Ripping, Still Calling Rips 'Unauthorized'
An Engadget article notes that the Washington Post RIAA article we discussed earlier today may have been poorly phrased. The original article implied that the Association's suit stemmed from the music ripping. As it actually stands the defendant isn't being sued over CD ripping, but for placing files in a shared directory. Engadget notes that the difference here is that the RIAA is deliberately describing ripped MP3 backups as 'unauthorized copies' ... "something it's been doing quietly for a while, but now it looks like the gloves are off. While there's a pretty good argument for the legality of ripping under the market factor of fair use, it's never actually been ruled as such by a judge -- so paradoxically, the RIAA might be shooting itself in the foot here."
"so paradoxically, the RIAA might be shooting itself in the foot here." Somehow or another the bullet will wind up in the foot of a consumer.
Or am I the only one that remembers when they went before the supreme court they said it was okay to rip from CDs to put songs on their iPods?
Comment I posted in a firehose story (which took all of 30 seconds to realize the summary was simplistic and wrong):
More Info
here and here
Looks like the person in question was using Kazaa, which listed his mp3 files, although they weren't actually shared (uhh ... does kazaa publish them if they're not shared?) Media Sentry found them (but didn't actually download them?). He represented himself and lost big time.
Do you even lift?
These aren't the 'roids you're looking for.
As it actually stands the defendant isn't being sued over CD ripping, but for 'old-fashioned' song downloading.
Still wrong.
They sued him over uploading, or at least, having the files in question in his Kazaa shared folder.
Yes, they may have "taken the gloves off" regarding their terminology, but this case has the exact same underlying "offense" as the thousands of other RIAA lawsuits we've heard about in the past few years.
These copies are unauthorized!
However, these copies are not illegal.
Under fair use, you are allowed to make copies for your personal use, and it is perfectly legal.
In this case, "unauthorized" is used in the sense of "Britney Spears Unauthorized Biography" instead of "Britney Spears Authorized Biography". Both are perfectly legal.
But is it illegal?
Just because something has a fair use defense, however, does not mean it was authorized. In fact, asserting a fair use defense is a tacit acknowledgement that the copyright holder did not authorize the use, hence the need to rely on the fair use doctrine.
Finally, even if ripping tracks is a fair use (likely), putting them online for someone else (especially if that someone else is not within the sphere of your private household, going by the text of the AHRA and the legislative record behind it) to download is certainly unauthorized and (per every court that's looked at it, e.g., Napster, Grokster, Aimster, etc) not within the fair use doctrine.
geek. lawyer.
This is significant because fair use depends on the purpose of the copying. Copying to put on your portable player would be a totally different situation under a fair use analysis than copying to give away to strangers on the internet.
At least in this case, they aren't trying to argue that all ripping is illegal--just this defendant's ripping. (And in other cases, they have said that ripping for your portable player is OK).
I believe that there are similar considerations if a defense under the Audio Home Recording Act, rather than under fair use is considered. The nature of the defendant and the reason for ripping would be relevant as to whether that covers him.
If the judge doesn't go along with their argument, they'll have to shut up about ripping being unauthorized.
If they get mp3's from ripping ruled to be unauthorized usage, that will just drive another nail in the coffin of CD sales. Consumers will turn to digital download services and completely eschew physical media. Artists will see the dwindling usefulness of the record companies and go independent.
Either way, the RIAA member companies will lose out. It would be far better for them to compete in the new arena than to use litigation to drive their way of thinking down everyone's throat. If they continue to ignore the cluebat beating them over the head, they'll wind up in the same boat with other organizations that have tried a similar approach (*cough*SCO*cough*).
They're not authorised by the copyright holder.
Fortunately, you don't need their authorisation, so that's OK.
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
Did the person copying them have authorization? No.
Fortunately for most of us you don't need authorization for fair use purposes as you have the right to make such copies (depends on the law where you are of course).
However if you are using them for purposes that aren't covered by fair use then the fact they are unauthorized is very relevant as your copying was not permitted by right.
The RIAA aren't being tricky here, they are stating the plain truth.
Boffoonery - downloadable Comedy Benefit for Bletchley Park
Is this the same retread story that's been making the rounds for the last two weeks?
Short summary: Guy ripped CD and placed MP3 in P2P shared directory. RIAA sues him for "making available" an "unauthorized copy". Media ignores first part and reports that RIAA is suing the guy for simply ripping a CD (how would they know if that's all he did?). Frenzied and completely incorrect stories are reported and posted to slashdot, with hundreds of comments posted by people who can't (or choose not to) read and correctly comprehend the actual events.
Will somebody please put a bullet in this undead zombie beast of a story? It seems to be submitted every day and the summary is damn near always wrong.
They may have read the article, but the article sucked. If you put any amount of thought into it, you would wonder how the RIAA would randomly pick someone and sue them for ripping CDs for personal use. A google later you'd find out that he was originally identified as a kazaa user, went to court without a lawyer, and lost.
Do you even lift?
These aren't the 'roids you're looking for.
If the RIAA can get people to think rips are "unathorized" copies they will be able to disregard fair play soon.
"Fair use" I think you mean. They'll have a hard time convincing consumers that it is morally wrong to rip their discs: ripping is a pretty entrenched idea now. People like me that started out on vinyl "ripping" to reel-to-reel will never accept there's a damned thing wrong with that. The only hope they have is getting another rewrite of copyright law pushed through Congress, which is far more likely.
More and more, I see the RIAA as a major league loose cannon, with repercussions for the studios that I have to believe they haven't fully considered. I know the studios are just biding their time, waiting to see just how much the RIAA can win for them in terms of legal precedent, copyright modifications, and alterations in public attitude towards copyright infringement. Still, I can't help but think this is going to be self-defeating in the long run. I haven't bought any big studio music in twenty five years, and I don't plan to start. They've already lost me as customer, permanently. If they keep going the way they're going (lawsuits, threats and intimidation, high prices, poor quality) they're going to lose more.
The higher the technology, the sharper that two-edged sword.
When "unauthorized" is automatically equated to "illegal" we have a problem in our society. Are we required to ask for authorization from someone to do everything now?
This is a stupid article.
They ARE unauthorized copies. There really has NEVER been any debate about that. The label didn't specifically authorize them therefore they are unauthorized. ITS THAT SIMPLE.
That said, the ENTIRE POINT of fair use is to legalize 'unauthorized copies' in limited 'fair use' circumstances. Fair use, by definition, operates on unauthorized copies. You have to make an unauthorized copy in order for fair use to apply. If the copy was authorized you wouldn't need fair use -- because you've got explicit authorization directly from the rights holder.
The RIAA calling these cd rips unauthorized is about as salient as when they 'over' identify the defendant... if they mention that Jane Doe is a 35 year old woman who works as a bookkeeper, they are not suggesting that being 35 years old, a woman, or a bookkeeper are issues in the case, they are merely identifying the defendant.
Similiarly identifying the unauthorized songs ripped from CD by the defendant merely identifies the songs in question. The fact that they are 'unauthorized' vs 'authorized' is as irrelevant as the fact they were ripped from CD instead of Sirius/XM-Radio.
The judge certainly knows this. The lawyers certainly all know this. Maybe the defendant isn't aware, but that's why he should have a lawyer.
Knee-jerk reactions by bloggers who seize on irrelevant facts without knowing or understanding how copyright works is the real issue here. I propose we have another front page article... "prominent journalists and bloggers somehow don't know making a copy without explicit authorization results in an unauthorized copy, DUH!"
I am "unauthorized" to walk around town or drink my coffee. Nobody, certainly not the RIAA, has granted me any permission to do so. However, I also require no authorization. This is the important thing to learn here: when someone says you have no permission to do something, ask yourself whether any permission is needed. You need nobody's permission to exercise your rights. As soon as you accept the lie that you do, you're lost.
Maybe, but Fox claims to be a professional news organization. Slashdot doesn't, and in fact just takes stories from anybody ... no real journalism involved. Slashdot is also pretty open about that, and doesn't claim to be anything other than what it is. Really, you should be criticizing Fox for being down at Slashdot's level.
The higher the technology, the sharper that two-edged sword.
Nah. CD ripped to hd for personal use: unauthorized, legal under fair use doctrine. CD ripped and shared: unauthorize, illegaly redistributed.
unauthorized because they have been placed in the share directory. Here's how it breaks down:
A CD ripped to your hard drive for personal use: OK.
What if (thru Windows File Sharing), my hard drive itself is shared?? What about Administrative (C$) shares than many are not aware of?
Because the status quo is nothing more than a de facto presumption of legality. At such point as a judge rules that it is legal, that becomes legal precedent. The last thing they want is for format shifting to be ruled fair use, since they have made their living over the decades precisely through reselling the same content in different formats over and over again.
More to the point, format shifting at least currently is only presumed to be fair use when done by an individual. Depending on how a ruling on format shifting was worded, there's at least the potential that it might make it legal for someone to set up a commercial format shifting service that provides crystal clear digital copies of your worn out phonograph records without paying the RIAA, its members, the composer, artist, or publisher a dime. Nothing would scare a greedy, corrupt cartel like the RIAA more than the risk of format shifting becoming de jure legal in the more general case, as that would mean that they basically would have to make a living entirely by creating new music that is worth listening to, something which they haven't, IMHO, done successfully in a very long time. :-D
Check out my sci-fi/humor trilogy at PatriotsBooks.
Here's an interesting quote from one of the legal briefs in the case:
The phrasing that they used seems to indicate that the MP3 files were authorized until they were placed into the shared folder. Now, I'm not a lawyer, so it's possible that this means absolutely nothing, but it's still an interesting notion.
What it seems that they are saying is that the MP3's are authorized until used for an illegal purpose (i.e. file-sharing). Amazon's MP3 Music Service TOS seems to support this interpretation. It encourages users to make backup copies of MP3's they purchase (which would be authorized); and, if you violate any of the terms (such as infringing upon the copyright of the MP3), your license to use the music terminates, making the MP3 unauthorized. While the music in this case wasn't purchased from Amazon, it seems like the same philosophy is involved.
What? How are they shooting themselves in the foot?
Because people want fairness more than they want the letter of the law. To most of us, it seems fair that distributing copies to people in defiance of ownership type rights is unfair. Most juries (in the U. S. at least), would award damages for a case of someone distributing something they don't own the right to distribute. Many, probably most there would approve of criminal charges.
But juries usually want to be 'fair'. 'Fair' means that it's much more serious to sell copies for substantial profit than to pass them around for 'free'. 'Fair' means that off air recording is either not wrong, or it's a pretty trivial wrong. 'Fair' means they don't want a EULA to be the equivalent of a normal signed paper contract.
So when the recording industry starts claiming that their rights are being violated by people making legitimate backups, or not buying a second copy to use in the car, or using a VCR for space or time shifting, or lots of other thing, the recording industry starts looking like Darth Vader/Simon Legree/Satan, etc. They come off as anal-compulsive jerks trying to give basically honest people a hard time, rip off little old ladies, tie Nell Fenwick to the tracks, and probably eat live kittens on their days off.
And the jury is looking for any chance to do what's 'fair' to Baelzebub/Snydley Whiplash/Hannibal Lecter. So, they don't just reject the arguement that ripping is a violation of fair use, they look for excuses to reject the rest of the RIAA's claim as well. Any excuse.
Who is John Cabal?
I'm normally not a paranoid cynic, but I'm actually quite bothered that the RIAA can try to dictate how I organize the files on my personal computer. What I suspect they are doing, by wording it they way they did, is to create as much of an accusatory tone as they can without having to actually prove any illegal activity. It would be one thing to say, "User X seeded Song B to a bittorrent client", but then they'd actually have to prove that, or face libel/slander charges.
> As it actually stands the defendant isn't being sued over CD ripping, but for placing
.sig before you do. (someone puts a blindfold on me) "Freedom and logic" (bang!)
> files in a shared directory. Engadget notes that the difference here is that the RIAA
> is deliberately describing ripped MP3 backups as 'unauthorized copies'
Apparently Engadget is confused as to what a "backup" is for and what a "shared directory" is for.
May I quote from a Speedy Gonzolez cartoon, where the fat oaf cat is looking for something to put out his friend, on fire. He grabs a bucket:
"P - E - T - R - O - L. Huh. That's a funny way to spell 'water'."
"S - H - A - R - E - D. Huh. That's a funny way to spell 'backup'."
I now humbly await my downmod. Please read my
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
> Engadget notes that the difference here is that the RIAA is deliberately describing ...
> ripped MP3 backups as 'unauthorized copies'
They are 'unauthorized copies'. So are copies made under fair use. Unauthorized is not a synonym for illegal. It just means that you don't have the copyright owner's permission. However, there are many things you can legally do with a copy without the copyright owner's permission.
> While there's a pretty good argument for the legality of ripping under the market
> factor of fair use,...
You mean under the Audio Home Recording Act exception. "Fair use" is something else entirely (it is, though, an example of something you can legally do without the copyright owner's permission).
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Fair use is often cited as a reason why people can supposedly do whatever they want with purchased media.
No, fair use is cited as the reason that people can do what they want with purchased media for their own use (the law actually has many other applications, but that's what is most relevant here.) Not too many people I know, and not many on Slashdot, believe that fair use implies a license to commit copyright infringement on a massive scale, because it doesn't. Whether or not you believe that Fair Use doctrine applies to ripping music for personal use (and that is open to interpretation, I agree), the Audio Home Recording Act explicitly does, so far as I can tell. The RIAA agreed to that in exchange for fees levied upon blank media sales. Now they want to renege on that agreement: the bastards want it both ways. Screw them, and their horses too, and I hope their building falls down on them.
However, fair use is NOT a law.
The United States Federal Government would disagree with you on that point.
For your edification, here's the relevant portion:
Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code
107. Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
So Fair Use is very much the law. Whether it can be construed to mean what we all want it to mean is something entirely different. I'm not a lawyer, but perhaps some actual attorneys could enlighten us as to the the application of Fair Use to personal copies of musical tracks.
The higher the technology, the sharper that two-edged sword.
In other words, they've been milking the oldies for so long they can't imagine any other way to make money from music. What happens if I have an old VHS recording that I want to shift to a DVD ... seems to me the same issues would apply. Hell, what if I have a book that I want to convert to an electronic format so I can shift it to my portable reader. The outcome of the RIAA's crusade will have effects well beyond music.
The higher the technology, the sharper that two-edged sword.
If you want to prove that ripping a CD is fair use, you need to test it in court. It is the job of the courts to decide the fine details of law.
In the UK, it would be called Fair Dealing, and has never been tested in a Court of Law. Therefore the Authorities can assume it is illegal, giving the police powers of arrest for the cassettes in people's cars that they taped from CDs using equipment that they bought in good faith for that purpose. In practice, however, so many people are doing it that nobody gets arrested. The only way it can be useful is as part of a "fishing expedition" where, on the basis of the existence illegally-copied cassettes about a suspect's person, premises or vehicle, a warrant is obtained to search for something more "interesting". By the time it gets to court, the tapes will be conveniently forgotten. This is all deliberate. It's not going to be tested in court. Out of a jury of twelve people, at least eleven of them have at least one home-taped cassette in their car. They aren't going to convict. If they did, the record companies might be happy for a moment; but in the real world, the police would have a field day stopping motorists to search for illegal tapes and there would be uproar. Strikes, rioting in the streets, that sort of thing, and the Government would be forced to intervene and explicitly legalise home taping (and, therefore, by analogy, ripping CDs to MP3s; although this might require another test case and a motion summarily to dismiss on the basis of similarity to an earlier case). If the jury acquit, of course, then home taping is automatically legalised. Either way, the record company fat cats lose! This is why the present situation persists: the Authorities get to feel they have a lever they can use against criminals, and the People get to feel they are doing something deliciously subversive. The only thing that would get in the way of this happy win-win situation would be for the legality of format-shifting to be tested in Court -- and it's the Authorities who control which cases get heard.
I suspect the situation would be similar in the USA. Declaring a near-universal practice to be criminal would be suicide for any government. Even if it only works out to be the case that format-shifting is legalised in one state, you can bet there will be movements to legalise it in others. The record companies aren't going to like that, so they won't bring a case to court if there's a real possibility that format-shifting could be declared Fair Use as a result.
Je fume. Tu fumes. Nous fûmes!
And why shouldn't we assume it's leagal? We've been recording tapes from pur LPs for decades, and that practice's legality was explicitly spelled out in the Home Recording Act of 1978.
I see no reason why rupping a CD to MP3 is any different than recording an LP to yape, and neither does anyone else who doesn't work for an RIAA label, or is stupid enough to believe their utter bullshit.
-mcgrew
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest