Over the past couple of weeks, there has been a lot of discussion, both positive and negative, over a legal brief filed by the
Recording Industry Association of America (RIAA) in the case of Atlantic Recording Corporation v. Pamela and Jeffery Howell [pdf]. The brief was brought
to light by attorney Ray Beckman, one of the few brave souls still tilting at the
RIAA’s windmills (the EFF being another). Beckman says that this brief shows
that the RIAA, and therefore the record industry, believes that ripping your
legally-purchased CDs onto your computer in mp3 format is an illegal act.
Unsurprisingly, a lot of rhetoric-spewing, anti-RIAA tech-heads have taken Beckman’s
side in this argument while other, more level-headed bloggers like Techdirt’s Mike Masnick, have tried to illustrate why Beckman’s side is misrepresenting
and over-exaggerating the legal brief’s inflammatory language.
It’s all just so many wasted pixels, I’m afraid, ‘cause in
this case, both sides are wrong and both sides are right. Here’s why:
perception is reality. With few exceptions (and it’s unlikely that anyone would
speak out against the industry party-line), the recording industry as an entity
believes (i.e. perceives) that
ripping your CDs to mp3 is a criminal act. Period. Just as they believe that
any “unauthorized” use of their music is piracy, just as they believe that
technology is evil, just as they believe that they’re entitled to large
salaries and deserve a piece of every conceivable use of “their music.” In all
of the discussions, blog entries, and even mainstream media articles on this
subject, this subject is always discussed in terms of legality or morality.
Never once have I seen it discussed in terms of reality, with insight into the
industry’s mindset.
Now as regular readers know, the Reverend is no fan of the
RIAA. It wouldn’t hurt my feelings in the least bit if we rounded up every
association exec and attorney, tossed ‘em in a tar pit along with the CEOs of
the “Four Families” of the recording industry, soaked them all in turpentine
and lit a match. Nope, wouldn’t lose a single minute’s sleep over the charbroiling
of these ignorant excuses for businessmen and cultural leaders. Over the last
four-and-a-half years, the industry – through its RIAA lapdog – has sued and
made life miserable for over 20,000 people, almost all of them average
Americans, to cover up their corporate lack of vision and the shortcomings of
their own outdated business plan.
However, it should be apparent to even a first year law
student that, yes, making an “unauthorized” copy of a song – even from a CD
that you legally purchased at your corner Best Buy store – represents copyright
infringement under current law. Title 17 of the U.S. Code covers copyright
issues, and chapter one, section 106 of the code clearly states that:
Subject to sections 107
through 122, the owner of copyright under this title has the exclusive rights
to do and to authorize any of the following:
(1) to reproduce the
copyrighted work in copies or phonorecords;
(2) to prepare
derivative works based upon the copyrighted work;
(3) to distribute
copies or phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending;
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What this means, in theory, is that the copyright owner
(i.e. the record label) has the exclusive
right to “reproduce” and “distribute” copies of the copyrighted work (song
or album); as defined elsewhere in the code, this includes digital copies of the
work. In practice, it is nearly impossible to control reproduction by the
individual for non-commercial use (tape trading, etc), and until recently (September
2003, actually, when the first RIAA “John Doe” suits were filed against
consumers), individual “infringers” were seldom targeted. However, the advent
and popularity of file trading across p2p networks has given rise to an
avalanche of litigation against individual copyright infringers that can be
(somewhat) easily identified through the sharing (i.e. “distribution”) of music
via peer-to-peer, thereby also infringing upon the copyright owner’s exclusive
right to distribute the works they “own.”
In the debate over the aforementioned RIAA legal brief, much
ado over nothing is made of the use of the word “unauthorized” in describing
mp3 files derived from the defendant’s compact discs. This is a moot point,
really…under section 106 (1), ANY reproduction of a copyrighted work without
authorization from the copyright owner is a violation of the owner’s “exclusive
rights,” and under Chapter 5, Section 501 of Title 17, “Infringement of
Copyright,” it clearly states:
(a) Anyone who
violates any of the exclusive rights of the copyright owner as provided by
sections 106 through 122 or of the author as provided in section 106A(a), or
who imports copies or phonorecords into the United States in violation of
section 602, is an infringer of the copyright or right of the author, as the
case may be.
The terms “unauthorized” and “illegal” are one in the same
in this case. This means that downloading mp3 files from your favorite rar
blog, torrenting that new CD that you don’t have the money to buy right now, or
even ripping your CDs to your hard drive are ALL copyright infringing acts and open to civil litigation.
Doesn’t matter if you fill up your drive with mp3 or AAC or flac files…if they
are unauthorized copies of copyrighted songs, then they’re illegal.
Yes, I can hear your cries of “Fair Use” all the way up here
in snowy, cold West New York, but to be
realistic, “Fair Use” might not really hold up, the Supreme Court’s “Betamax
decision” notwithstanding. Chapter One, section 107 of Title 17 describes “Fair
Use” thusly:
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.
There’s nothing in copyright law that I can find that says
that it’s OK to duplicate your CDs for use on your computer or iPod player.
Nada. Even the Supreme Court was conflicted in the oft-quoted Sony Corp. of
America v. Universal City Studios, Inc. This case wasn’t so much about the right of
the individual to make copies of copyrighted material for personal use as it
was about the right of corporations to create products that make copyright
infringement possible (i.e. videotape recorders, DAT recorders, etc), provided
that the products have substantial, non-infringing uses (a standard under which
Napster, Grokster, KaZaA, etc subsequently failed). Although the 5-to-4 court
decision mentions the consumer’s ability to “time-shift” television programming,
it does not provide a prima facie right to do so, and there was some
disagreement over this subject among the justices. Until an actual “Fair Use”
case hits the court, this is really an ephemeral argument in favor of copying
your CDs.
So, where does that leave us? We’re right back at the beginning, considering
the aforementioned argument over the RIAA brief. The crux of the debate is this
offending language, buried deep in the document (page 15 of 21, actually):
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.
Both sides of this debate have misinterpreted this paragraph, so here’s
my stab-in-the-dark at analysis. In simple language, once the defendant ripped
the songs to mp3 format, they were no longer “authorized copies” (i.e. the
original CDs that he purchased); the presence of the term “shared folder” is
legally irrelevant. The act of converting the “Plaintiffs’ recording” (thereby “reproducing”
the recording) is a civil infringement of copyright in and of itself, and therefore
illegal. By subsequently placing the mp3 files in the “KaZaA shared folder,”
the Defendant has also illegally “distributed” the Plaintiffs’ recording, a
separate and equal offense of infringement.
The underlying issue here, the question on everybody’s mind is “what is
the RIAA up to?” Here’s the Reverend’s spin on the situation: the industry is
trying to up the ante on its lawsuits against consumers. It’s been
four-and-a-half years down the road and around 25% of the industry’s 20,000
lawsuits have been settled out-of-court for peanuts. Only a handful of these
civil suits have made it to trial, and the jury is still out on most of them. I
think that the record labels that foot the RIAA’s legal fees are getting
impatient for more drastic (and spectacular) actions. They want to move out of
the realm of the purely symbolic (which, let’s face it, is mostly what these lawsuits
are about, ‘cause they’ve done nothing to deter file trading) and into the
reality of the truly punitive. Yes, dear readers, the Reverend is talking about
criminal trials of file traders.
As one of the few journalists covering the industry since the days when
they were fighting “home taping” a quarter-century ago, I know as well as
anybody the record biz mindset. Remember, for most industry executives, perception
is reality, and they perceive anybody that misuses “their music” to be
criminals. Now they want to treat them as such. Record execs don’t understand,
and thereby fear most technology and, for the most part, they don’t care enough
to try (unless they can figure out how to make money from it all). To them,
reality reads this way: if you deter people from this illegal file-trading activity,
CD sales will return to late-90s record levels. If civil lawsuits ain’t cuttin’
the mustard, then it’s time to bludgeon these awful thieves with some hard time
behind iron and concrete.
Hidden in the RIAA’s legal brief in the Atlantic vs Howell case is the
following paragraph, which I find more distressing than the section which everybody
is arguing over:
Indeed,
Defendant’s conduct in this case has subjected Plaintiffs’ valuable sound
recordings to ongoing “viral” infringement. See In re Aimster Copyright Litig.,
334 F.3d 643, 646 (7th Cir. 2003) (observing that “the purchase of a single CD
could be levered into the distribution within days or even hours of millions of
identical, near-perfect . . . copies of the music recorded on the CD”).
With this casual, tossed-off comment the industry is setting the stage
for future legal actions by injecting a single meme into the debate – any unauthorized
distribution of their “valuable sound recordings” will result in “viral”
infringement, i.e. millions of multiple copies flying around cyberspace for
digital pirates to plunder at will. Such multiple infringements, it will be
argued, would economically destroy the industry. Why would they want to float
this idea into the ether? Because, under current copyright law, it’s to the
industry’s benefit to make any digital distribution of their copyrighted works
seem worse than it may actually be.
Chapter Five of Title 17, section 501 specifically defines copyright
infringement as such:
(a) Anyone who
violates any of the exclusive rights of the copyright owner as provided by
sections 106 through 122 or of the author as provided in section 106A(a), or
who imports copies or phonorecords into the United States in violation of
section 602, is an infringer of the copyright or right of the author, as the
case may be.
While Chapter Five, section 506 outlines the aspects of “Criminal
Infringement” as being:
(a) Criminal Infringement. —
(1) In general. — Any person who willfully infringes a
copyright shall be punished as provided under section 2319 of title 18, if the
infringement was committed —
(A) for purposes of
commercial advantage or private financial gain;
(B) by the
reproduction or distribution, including by electronic means, during any 180-day
period, of 1 or more copies or phonorecords of 1 or more copyrighted works,
which have a total retail value of more than $1,000; or
(C) by the
distribution of a work being prepared for commercial distribution, by making it
available on a computer network accessible to members of the public, if such
person knew or should have known that the work was intended for commercial
distribution.
(2) Evidence. — For purposes of this subsection, evidence of
reproduction or distribution of a copyrighted work, by itself, shall not be
sufficient to establish willful infringement of a copyright.
Of particular interest here is section 506 (a)(1)(B), notable for its
definition of copyright infringement for no commercial gain (i.e. potential distribution
via p2p) as consisting of copies with “a total retail value of more than
$1,000.” If you buy into the industry’s idea that any electronic distribution
is “viral” in nature, resulting in thousands (if not millions) of infringing
copies, it’s easy to cross the imaginary $1,000 threshold for potential
criminal punishment.
Please note that section 506 (2) states that “evidence of reproduction
or distribution of a copyrighted work” is not sufficient, in and of itself, to
provide evidence of willful, and therefore criminal copyright infringement.
However, the RIAA is attempting, through its many court actions, to redefine
the rules of the game in their favor, by proving through legal precedent, that
any reproduction of copyrighted work (such as making a mp3 file) is “willful” (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) and
therefore criminal in nature. Since the “viral distribution” meme puts any
offense over the $1,000 threshold, criminal penalties are in play. If you jump over
to Title 18 of U.S. Code, section 2319 specifies allows for one year
imprisonment and a fine for the first offense of criminal copyright
infringement of $1,000 or more; three years imprisonment and a larger fine for
first offense of $2,500 or more.
In laying out the situation above, the Reverend is neither supporting nor
condemning the stance of the RIAA or the actions of file traders as concerns
copyright infringement. My loyalties firmly lie with the artists, who are
getting screwed by the record labels on a daily basis, abused much worse than
any p2p trading could ever hurt them. Most major label musicians don’t have any
copyrights to infringe upon anyway (all rights having been taken by the labels
or their song publishers in the first place). However, the system is definitely
skewed in favor of the multi-national media corporations. If you don’t like the
industry’s actions, donate to the Free Software Foundation’s Expert Witness Fund, used to fight RIAA lawsuits. If you support peer-to-peer file trading,
support the EFF. If you don’t like the way that copyright laws are currently
written, lobby your Congressional representative. Just don’t sit there and
think that it’s going to go away.
When the RIAA first started suing its labels’ customers in 2003, we
were assured that they were going after only the most egregious infringers,
those evil file traders that were swapping hundreds, if not thousands of song
files online. Four years later, in their action against the Howells, they claim
54 shared files, and have filed suit on only 11 of those. In their high-profile
legal “victory” against single-mother Jammie Thomas, the defendant was found
guilty of sharing less than two-dozen songs through KaZaA. The RIAA has always
said one thing and done another. Therefore, when the first arrests are made for
criminal copyright infringement, none of us will have the right to be
surprised….
Sources:
"RIAA Files Supplemental Brief..." (Recording Industry vs. The People blog)
"RIAA Not Saying That Personal Copies Are Illegal (Yet)" (Techdirt blog)
Recording Industry Tells Court (Again)... (Wired blogs)
Atlantic Recording Corporation v. Pamela and Jeffrey Howell (RIAA brief) [pdf]
U.S. Code, Title 17, Chapter 1, Section 106
Electronic Frontier Foundation
