RIAA Believes MP3s Are A Crime: Why This Matters -- Updated

In the confusion following the Washington Post's RIAA story, and its subsequent "correction," journalists and advocacy groups alike are missing an important fact: the RIAA has repeatedly taken the position that ripping MP3s from CDs you own is illegal, and it's using that argument to harm consumers.

Journalists, policy watchers and even copyright experts who fail to understand this risk helping the RIAA's ongoing crusade to cripple technology.

For those who still maintain the RIAA does not believe that MP3s are a crime, here are two very clear pieces of evidence:

• In the first ever trial of a person accused of sharing copyrighted music files over a peer-to-peer network, a Sony executive described ripping songs as stealing. Then the RIAA's lawyer grilled Thomas on the stand about whether or not she'd gotten permission before making personal copies of her music. (THREAT LEVEL's David Kravets covered the trial gavel-to-gavel.)

• Every three years, the Librarian of Congress decides what exceptions will be made to a federal law that makes it illegal to defeat copyright locks. That law is the Digital Millennium Copyright Act. In 2006, a number of exemptions were proposed.

  The RIAA, among others, opposed these exceptions. In a February 2, 2006 letter (.pdf) to the Copyright office, the group wrote that ripping MP3s from CDs -- also known as device shifting -- was not covered by Fair Use and thus was infringing. They also said that making a back-up copy of a CD was also infringing.

  The Register [of Copyrights] was right in 2003 to be “skeptical” of the merits of any fair use analysis that asserts that space-shifting or format-shifting is a noninfringing use. ... This is particularly the case in today’s market, where inexpensive legitimate digital copies of most types of works are readily available, and increasingly can be obtained through online download services. Where a market is functioning to serve the demand otherwise being fulfilled by unauthorized copying, the likelihood that the unauthorized copying is fair use is diminished.

  In such a market, the inconvenience that faces consumers of works tethered to specific devices is far outweighed by the threat to the enjoyment of copyright posed by illegal digital distribution facing copyright owners. As the Register stated in 2003, “[c]rtainly, where the unauthorized] online distribution of works is a potential concern, space-shifting will be incompatible with fair use.” [...]

  The submission asserts in its third example, “device and format shifting,” that such activities “are unquestionably fair uses” of lawfully purchased CDs, (C6 at 8); but among those questioning this conclusion is the Register, who noted in 2003 that “proponents have not established that space-shifting or platform-shifting is a noninfringing use.” 2003 Rec. at 139.

  Similarly, creating a back-up copy of a music CD is not a non-infringing use.

(Emphasis added)

I don't know how clearer it needs to be to journalists, copyright lawyers and D.C. policy groups like CDT. The RIAA thinks that ripping CDs is illegal.

The RIAA believes that if you want to listen to copyrighted music you bought on CD on your digital music player, you should go to Amazon or iTunes and buy a digital copy there. Anything else is infringement in their eyes -- even if they have no way of catching you do it.

Take that stance from the filing and look closely at what the RIAA says on its website about ripping MP3s:

There’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:

• The copy is made from an authorized original CD that you legitimately own
• The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.

Taken apart, what does it mean? Ripping MP3s is unauthorized. Under copyright law, anything unauthorized is infringing, unless the Fair Use doctrine defends the action as "non-infringing." But the RIAA doesn't believe that Fair Use covers MP3 ripping. So when they say unauthorized, they mean "infringing." But that infringement won't "usually" bother them until you start distributing.

But once they go after you for distributing, they are going to also go after you for copying. They did it to Jammie Thomas. They are and will do it in the Arizona case, where when asked by a court if a file sharer who ripped MP3s had "illegal copies," the RIAA told the court that Jeffrey Howell had unauthorized copies on his computer.

For clear propaganda reasons, the music industry won't publicly say it considers ripping MP3s to be copyright infringement.

They did say it in Jammie Thomas's recent trial, but when called on that testimony in a public forum, RIAA president Cary Sherman conveniently says the Sony executive "misspoke." By that point the $222,000 damage had been done and Sherman was free to say anything he wanted on NPR.

The RIAA sued the first MP3 player, it sued XM radio for making a device that let users record broadcasts -- again a legally recognized fair use -- and it forced the crippling of DAT audio recorders. The RIAA is also hard at work putting small web radio stations out of business with usurious royalty rate increases.

The RIAA is now working with the nation's ISPs to find ways to snoop on Americans' internet communications to find copyright infringement. That sets up a perfect situation for the RIAA to send automated letters demanding a $5,000 pre-lawsuit payment because you emailed an MP3 to your fiance -- a song which you legally bought on CD. Hell, it could go after you for ripping a CD at home and then e-mailing it to a personal account in order to listen to it at work. From a network perspective, it all looks like infringement.

And yet, instead of pouring heat on the RIAA to clarify its legal stance, bloggers and journalists are filling in the gaps left by the RIAA's silence on its position with generous suppositions on what the RIAA's muddled public pronouncements mean and examining how it is legally clever of them.

That's dangerous. The RIAA doesn't believe Americans have any right -- or Fair Use legal defense -- to play copyrighted material on the device and in the format of their choosing.

That belief has been and will continue to be a threat to innovation and new technology.

The failure to recognize that simple truth will blow back in the form of more draconian public policies and laws, as well as more crippled devices.

Update: Copyright expert and Google copyright counsel William Patry had the same idea and on Monday delved into the RIAA's previous statements to Congress on Fair Use. As for whether the RIAA believes in Fair Use, he writes:

[I]t appears the RIAA doesn’t want to ever concede that personal use is lawful –
as compared to “usually won’t raise concerns.” What does that mean? If I ask a cop whether I can drive 35 miles per hour on a particular road with no speed sign, is it sufficient for him to say, “well that usually won’t raise concerns.”

The long post is well worth reading in its entirety, but he concludes with some wise counsel:

So here’s a proposed solution: let’s give honest people what they want, clear guidance; instead of wasting Congress’s time on gluttonous issues like getting even greater statutory damage awards, why not spend that time drafting a personal use exemption – not fair use guidelines, but a real exemption. One that will exempt all home copying and use by individuals off of lawfully purchased copies, including space and format shifting, for noncommercial purposes. Such a law would earn copyright owners (and Congress) tremendous public applause, while those who are honest could forget about copyright law, finally. Those who are engaged in the truly problematic activities, like massive unauthorized distribution of works would be isolated, legally and in the public’s eyes. What I think is unacceptable is the status quo, one that deliberately keeps things vague and that lumps honest people who want to engage in home, personal, noncommercial uses in with those who deserve to be called pirates.

See Also:

• RIAA Still Thinks MP3s Are a Crime, Despite Post's False Correction
• War on File Sharer Following War on Terror
• What It Looks Like Trying to Get A Straight Answer From the RIAA
• RIAA's Sherman Speaks (Un)Believable 'Catch 22' -- Update
• Sony BMG Exec Tells Jury that Ripping a Single Song is Theft

Photo: Doug