Seeing the Forest for the Trees in the RIAA-Washington Post Scuffle

Does the RIAA believe that ripping a CD to your computer is illegal? That was the claim made by Washington Post writer Marc Fisher in a New Year’s eve article in that paper. Reporting on the Phoenix lawsuit Atlantic v. Howell, Mr. Fisher claimed that the recording industry in that case “maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.”

Except as Greg Sandoval of CNET and other blogs noted shortly after the article was published, that is not what the RIAA is alleging in this case. It is not claiming that the mere ripping of a CD onto your computer is illegal – it is saying instead that ripping a CD to your computer and placing those songs in a Kazaa shared folder (as Mr. Howell did), is illegal, a violation of the “distribution right” copyright holders have under Section 106 of the Copyright Act. Here is the relevant portion of the RIAA’s brief which makes this clear:

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.

The reaction by the RIAA to the WaPo piece was swift and furious. In a debate aired on NPR, RIAA President Cary Sherman said that Fisher never bother to call him back after he returned Fisher’s phone call on the matter, even though Sherman called back 9 days before the story ran. As a result, the article had no response from the recording industry. Indeed, to the best of my knowledge, Fisher did not bother to call PK or any of its other friends of fair use. We had known about the case for weeks, but declined to raise a big fuss because the RIAA’s claims are not what they initially appear to be. Although Fisher at first staunchly defended his piece, the paper finally relented and issued a clarification on Tuesday.

But while the RIAA may understandably be upset with Fisher’s reporting about the case, we must not lose sight about two very important things that arise from this dust-up. First, the RIAA is trying to convince the Arizona court that the mere “making available” of copyrighted works on a computer hard drive violates the copyright holders right of distribution, even though there is no evidence that Howell actually distributed any copies of those songs in the shared folder. This is a radical theory that is also being litigated in the case of Elektra v. Barker in federal district court in New York City.

Second, and perhaps more important, although Sherman and the RIAA have had ample opportunity over the past 10 days to make clear once and for all that the RIAA thinks that ripping a CD to a computer for personal use is legal, they have refused to do so. Wired.com’s Ryan Singel has written extensively about this, including this amusing exchange of emails between Singel and an RIAA spokesperson. The farthest the industry will go is to say that they won’t sue anybody for doing so. At least for now, anyway.

By refusing to give that much, millions of music fans are branded as criminals who are merely fortunate that the cops are looking the other way. What the industry continues to ignore is that attitudes like this do not encourage fans to buy their product, and in fact, may drive them to engage in the very behavior lawsuits like Atlantic v. Howell are supposed to prevent.

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