RIAA: you aren't authorized to rip your CDs

The RIAA has told a court that ripping your CDs to MP3 format is "unauthorized" and illegal, in a brief filed with the Arizona US District Court where Atlantic Records is suing Jeffrey and Pamela Howell. The last time this issue came up, in the Grokster Supreme Court case, the RIAA's lawyer said that ripping CDs was not illegal and was implicitly authorized by the record labels. Link (via /.)

• [el kabong]

  On “begging the question”
  http://www.qwantz.com/archive/000693.html

• [Tzctlp]

  It is bleeding obvious that the RIAA is not claiming what Boingboingers are claiming they sad.

  The important bit of information is the shared part.

  As for having copies for all the family from an original source, that would be clearly illegal, since most cases of fair use talk about private copies of an original.

  You can slice it any way you want, sharing ripped stuff from one CD with your family is infringing.

  In the case mentioned of both family members having the CD reason says that then they could have one backup copy only that they could use as private.

• [RealCatholicMen]

  hhh, thnk y Brndn (20), fr tht qt.

  S th R sys y r nt thrzd t rp yr CDs nd plc th MP3s nt P2P shrd fldr whch s gng t b vlbl t th ntr wrld.

  Thy dn’t cr f y rp CDs. Thy dn’t vn cr f y rp thm nd pt thm nt prvt ntwrk shrd fldr fr yr fmly.

  Thy cr whn y pt thm nt yr Kz shrd fldr tht th ntr <>plnt hs ccss t.

• [Teresa Nielsen Hayden / Moderator]

  So the problem is making the copies and then putting them where someone else could take them?

• [A New Challenger]

  Home taping is killing the recording industry.

• [Dan Wineman]

  Cory @ 3: Reading the Grokster argument, I don’t see where the RIAA claims space-shifting requires their authorization. On page 12 of the oral argument — which is where the blog entry you linked tells us to look — they refer to the practice as “lawful,” not as “authorized.” In fact, the only occurrence of the term “fair use” is on page 33, in a response by the Grokster attorney.

  Rob @ 11: On page 15 of the brief, starting on line 16: “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.” This line is also quoted in the Slashdot summary, but misrepresented: the RIAA nowhere says that converting to .mp3 is sufficient grounds for prosecution. The “and they are in his shared folder” is the key clause.

  Slashdot summaries are, as always, a terrible place to get your news.

• [Dan Wineman]

  Unauthorized? Yes.

  Requires authorization? No, because fair use is pretty well established to cover time- and space-shifting.

  Remember, though, that fair use is a defense to infringement, not an affirmative right. It could be argued that by using a fair-use copy in a way that doesn’t meet the fair-use standard, you lose the protection that allowed you to make the copy in the first place. I think that’s the claim this filing is trying to make. See page 8 of the PDF.

• [Cory Doctorow]

  Dan, the RIAA argued (in Grokster) that authorization WAS required to rip your CDs because it WASN’T fair use, but that they made this authorization to their customers out of the goodness of their hearts.

• [ecobore]

  The RIAA needs to be wound up – they are worse than useless and in fact are not protecting ANYBODY’S interests other than their own! Cut the funding ALL you record companies – you know that you are going to sell far far more at reasonable prices online without DRM!

• [Spikeles]

  As is usual, people and reporters pick and choose from articles the words that have the most impact. These words usually end up misrepresenting the information in question.

  As said by harlows_monkeys on Slashdot. “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.”

• [Brandon N Schory]

  Since we keep getting partial quotes here, the following is drawn from the Plaintiff’s Supplemental Brief found here:

  http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_howell_071207RIAASupplementalBrief

  “C. Defendant possessed unauthorized copies of Plaintiff’s copyrighted sound recordings on his computer and actually disseminated such unauthorized copies over the KaZaA peer-to-peer network.

  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. 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. (See Jacobson Decl. ¶ 6 and Exhibit 1 thereto.) Each of these actual, unauthorized disseminations of Plaintiffs’ copyrighted works violates Plaintiffs’ exclusive distribution right under the Copyright Act. See Perfect 10, 416 F. Supp. 2d at 844. 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. See Perfect 10, Inc., 487 F.3d at 719; Napster, 239 F.3d at 1014; Hotaling, 118 F.3d at 203; Lott, 471 F. Supp. 2d at 722.”

  This seems to be the offending line:

  “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.”

  There is a distinctive and worrying and there which begs the question is the fact that they are in .mp3 format, that they were in his shared folder (and by this, if you read the breif in full, it is meant the KaZaa shared folder, not somewhere he put them for his wife), or the combination of the two that is the problem.

  @Rob, #11:

  “If the shared folder is for family use only, I don’t have a problem with it. So if instead of a shared folder, each ripped it, it’s OK? Or do you expect the husband to buy the CD *AND* the wife to buy the CD, two copies in the household, each to be ripped seperately?”

  The issue here is not that it was in a shared folder on his private network for his wife to take, but that it was in his KaZaa shared folder.

  I’d like to note I think the RIAA are a bunch of spineless assholes who need to get in touch with the 21st century, but if we’re going to stick it to them, we need to be sure they’re actually doing something blatantly stupid.

• [deejayqueue]

  I didn’t know the RIAA was in a position to dictate law to the courts now. I thought it was supposed to be the other way around?

• [William Morriss]

  This kind of thing makes me wonder what is authorized. After all, listening to a CD on your computer creates a (short lived) copy of whatever you’re listening to on your computer’s memory.

  In any case, the law at this point is pretty clear that “space shifting” (i.e., putting your music on an MP3 player) is fair use, so I don’t see how the RIAA has a leg to stand on here (unless they’re trying to eliminate the rights established in previous cases).

• [van]

  All of this has been said before, but the RIAA needs a swift kick to the balls.

• [wolfrider]

  awesome point Spikeles (#5) I hope other actually read your comment before just running to the bottom and posting their own thoughts before thinking about how they sound.

  Everyone needs to keep in mind when you read ANY article, whether the author shares your views or not, they have an agenda and are writing the story for a reason.

• [elevenwatt]

  The interpretation that the RIAA is simply saying that ripped+shared = illegal is a generous one – we are talking about legal language that is typically more precise than, say, commentary. It’s deliberately vague at best.
  But a couple things I object (hand slapping table, OBJECT!) to: the definition of MP3s as a compressed file *intended to be shared using some file transfer protocol* and not just used on a media player. Or for that matter intended to be smaller.
  Also, this “Once… 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.”
  They make a distinction between ripping and putting them into the shared folder, and distributing them. It implies intent to distribute (by putting them into a shared folder) is an illegal activity. As far as I know, the only illegal or unauthorized activity described in that whole paragraph is distribution.

• [jonathon]

  @DEEJAYQUEUE Absolutely correct. Just cause the RIAA says it’s so doesn’t make it law – but it’s important to organize against them – before they push legislation through.

  They are a lobby group, and ultimately represent media conglomerates – not artists, not users.

  Don’t they realize we’re not going to pay for the digital *and* ‘hard’ copies? I’m sure that is the hope, but they need to guess again. s

  Great article by Michael W. Dean (author $30 Film School, director of DIY or DIE) on copyright http://digitalmedia.oreilly.com/2007/11/29/anarchy-vs-digital-copyright.html

• [Rob]

  @spikeles:

  You missed some of the quote from the /. summary:
  “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”

  If the shared folder is for family use only, I don’t have a problem with it. So if instead of a shared folder, each ripped it, it’s OK? Or do you expect the husband to buy the CD *AND* the wife to buy the CD, two copies in the household, each to be ripped seperately?

• [Blackbird]

  Spikeles:

  Would it be legal say, to rip MP3′s to a shared folder if it’s ONLY shared to yourself (IE, a home network)? Or is it only illegal if it’s shared to other networks? I’m curious.

• [Shrdlu]

  Technology has changed they way we enjoy music, but the only thing the RIAA cares about is DRM. They’re missing the boat.

  If the recording industry wants to save itself, why don’t they get creative instead of just filing lawsuits and lobbying? If they wanted to get consumers back to buying music on disk, they should add some enhancements. Issue more recordings on DVDs. They could add more than just the usual interviews, concert footage and videos. Why not chart the music for us amateur musicians or add GarageBand files? Include pre-ripped music files and ringtones. They could link to on-line communities of fans and offer exclusives for the purchasers of the DVD. Not only would they be adding value for consumers, it’s a great marketing opportunity.

  They really haven’t done a good job thus far. The Pixies DVD was one of my most disappointing purchases ever, much as I love the Pixies. You would think with the incestuous relationship between the film, recording, and gaming industries they would have the talent at their disposal to do better.

  Bottom line is if I so wanted, I could get most of the music I want on Usenet, and they way the RIAA has been acting I wouldn’t feel that bad about it. But the fact is they have lost control of their content and recorded music has been devalued. That’s not going to change. They know they will never win the DRM game, so why not try to earn my money instead of intimidating it out of me?

• [Nora Rocket]

  @ William Morriss #7: Not to mention the short lived copy of whatever you’re listening to that is created in your brain. I hope it’s fair use if listening to TMBG causes me to sing “They’ll Need a Crane” all day…

• [potatohead]

  Well,

  A while back, Larry Lessig hosted an interview that has them on record saying otherwise!

  http://www.pbs.org/newshour/forum/june03/copyright9a.html#oc

  Here is the relevant passage, in response to a question I asked at that time?

  Q: What are we buying when we buy entertainment media? Is it a license to view/listen to the product, or is it just a copy of the title that we have limited rights to? That is, do we own the license to view/listen to the content in any format — or when we buy a CD, are we just purchasing the format of the content?

  A: When you buy a CD, you should feel free to consume the music. That means you should listen to that disc, and feel free to make a copy of that disc for your own use so that you can have a copy in your home and your office. You should feel free to copy it onto other formats, such as .mp3, so that you can listen to it on your computer. You should feel free to copy it to cassette.

  The only time you run into problems is if you begin to distribute your copies to others.

  Seems pretty damn cut ‘n dried to me!

  Cheers guys! Love BoingBoing –been reading from damn near the start of things.

• [leibniz]

  as much as i’d love to see such a misstep by the RIAA, this spin really strikes me as manipulative.

  the arguments, taken in context, seem to clearly indicate that it was not the conversion to mp3 that was the offending act, but rather the conversion to mp3 with intent to share (in violation of copyright). i don’t see how any cogent reading of the arguments in total could be interpreted as contradicting the statements from the Grokster case.

• [xopl]

  Two steps here:

  1. Call your elected officials and tell them what you think.
  2. Write your favorite artists (or write on their MySpace) and tell them you don’t pay for their music to be harassed for how you listen to it.

  Bitching about the RIAA on boingboing unfortunately does nothing, except maybe make you feel a little better for having vented.

  You’ve got the information about what they’re up to, now act. Your elected officials do not read boingboing, or digg, or your personal blog. Remember that.

• [Russell Letson]

  In #20′s otherwise to-the-point comment, the phrase “which begs the question” ought to be “poses the question.” This once-useful logical phrase is now almost universally misused on TV and even (small teardrop) public radio. Begging the question and posing one are very different acts.

• [anthropomorphictoast]

  I can see the headline now: “BoingBoing Users Start International Petition to Kick the RIAA in the Balls”

  It’d be glorious.

• [MAXX]

  If the RIAA wants to tell me what I can do with the music I buy from them,then I have the SAME moral right to tell them what they can and cannot do with the money I PAY them.
  Commerce is an exchange.
  I will insist they spend it only on business I approve ofand in a way I agree to. (It’s MY money…)

• [MAXX]

  The Feds should use RICO on the RIAA.

• [RagManX]

  Thanks to #20 for the more complete text rip. To me, just reading the first paragraph of that text makes it sound like indeed the recording industry lawyers are claiming that having the mp3 files at all is infringing:

  “C. Defendant possessed unauthorized copies of Plaintiff’s copyrighted sound recordings on his computer and actually disseminated such unauthorized copies over the KaZaA peer-to-peer network.”

  Yes, there is a complaint about distribution over KaZaa, but it starts out in what I read as a claim that having the copies on the computer at all is unauthorized. And that *is* in contradiction to what we’ve been told at least since the MGM vs. Grokster case.

• [Nick D]

  Regarding the “stop bitching and do something” contingent: can’t we amend that to “Keep bitching and do something.”

  Because there is a difference between bitching, and giving the issue a good airing, which I certainly think is worthwhile.

  To me, bitching is characterized by an apathetic, there’s-nothing-we-can-do kind of sadsack attitude.

  What we have here is more constructive, and potentially very motivating.

• [Brandon N Schory]

  @ Russell Letson, #22

  Good catch. Yes, it poses the question (I loathe circular definitions, so I wonder why I did not know this). That whole sentence needs to be redone really. What I meant to say was:

  There is a distinctive and worrying wording there that poses the question, “is it the fact that they are in .mp3 format, that they were in his shared folder, or the combination of the two that is the problem.” (It should be noted here that the “shared folder” here, if you read the brief in full, it is meant the KaZaa shared folder, not somewhere he put them for his wife.)

  This is what I get for responding while doing 5 other things at the same time.

• [Brandon N Schory]

  @ RagManX, #23

  I agree that the wording in the heading of this section can easily be interpreted to say that the original .mp3 files were unauthorized, and perhaps this is what they do mean. I certainly wouldn’t put it past them to try to get that somewhere in a legal decision. It would make their future bullying much easier.

  My main disagreement with accepting this interpretation completely is that later in this section they do try to show why the recordings are unauthorized:

  “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.”

  My reading of this bit was that by ‘unauthorized copies’ they mean ‘the .mp3 files in his KaZaa shared folder’, not just ‘.mp3 files located on his hard drive’. If this is the case, they may have legs to stand on. I’m not well versed enough on the legal precedence in this area to know what other lawsuits have said about this conjunction of format and location as a definition of what constitutes unauthorized copies, so this may too be incoherent.

  Without them explaining what they mean in that sentence, I cannot come to any solid conclusions one way or another. I hope the case gets dismissed or defeated simply so that this poor wording cannot be entered as legal precedence in the future. That section heading alone, without an opinion stating how it is to be interpreted, could set back any progress RIAA opponents quite a bit.

• [Epicanis]

  Space-shifting is not “fair use”.

  Let me clarify that: Space-shifting is not merely “fair use”.

  Unless the RIAA has been a lot more successful at legislator-bribing than I realize, the Home Recording Act of 1992 makes space-shifting explicitly legal, doesn’t it?

• [doihavto]

  This would put mp3 players out of business.

• [bbreader]

  Read XOPL’s post above, read it again, and again until you’ve done something about it.

  If you’re Canadian, Google “Michael Geist” AND “What you can do” and then do something.

  It’s not easy, but it’s not that hard either.