Kevin's Watch

By Marc Fisher
Washington Post Staff Writer
Sunday, December 30, 2007



Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing.

Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle.

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

RIAA's hard-line position seems clear. Its Web site says: "If you make unauthorized copies of copyrighted music recordings, you're stealing. You're breaking the law and you could be held legally liable for thousands of dollars in damages."

They're not kidding. In October, after a trial in Minnesota -- the first time the industry has made its case before a federal jury -- Jammie Thomas was ordered to pay $220,000 to the big record companies. That's $9,250 for each of 24 songs she was accused of sharing online.

Whether customers may copy their CDs onto their computers -- an act at the very heart of the digital revolution -- has a murky legal foundation, the RIAA argues. The industry's own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it "won't usually raise concerns," as long as you don't give away the music or lend it to anyone.

Of course, that's exactly what millions of people do every day. In a Los Angeles Times poll, 69 percent of teenagers surveyed said they thought it was legal to copy a CD they own and give it to a friend. The RIAA cites a study that found that more than half of current college students download music and movies illegally.

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

As technologies evolve, old media companies tend not to be the source of the innovation that allows them to survive. Even so, new technologies don't usually kill off old media: That's the good news for the recording industry, as for the TV, movie, newspaper and magazine businesses. But for those old media to survive, they must adapt, finding new business models and new, compelling content to offer.

The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."

The industry "will continue to bring lawsuits" against those who "ignore years of warnings," RIAA spokesman Jonathan Lamy said in a statement. "It's not our first choice, but it's a necessary part of the equation. There are consequences for breaking the law." And, perhaps, for firing up your computer.

p2pnet news | RIAA News:- Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA is now trying to claim making MP3s from personal music files and putting them in a shared folder is in and of itself a copyright infringement!

On page 15 of its brief on Atlantic v Howell:

“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 … Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies’…”

So posts Recording Industry vs The People, quoting from the RIAA (Recording Industry Association of America) online document.

Interestingly, the fact RIAA ‘expert witness’ Doug Jacobson’s abilities have been seriously called into question notwithstanding, the Big 4 ‘trade’ organisation is still using him to present testimony.

“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.). says the court paper.’

Definitely stay tuned.

Vain wrote:Well there goes my ipod with all my legally bought CD's stored on it

They're not kidding. In October, after a trial in Minnesota -- the first time the industry has made its case before a federal jury -- Jammie Thomas was ordered to pay $220,000 to the big record companies. That's $9,250 for each of 24 songs she was accused of sharing online.

Syl wrote:Disable remote access. Check.
Strong password protection. Check.
Firewall. Check.
Privacy Software. Check.

Malik23 wrote:Just like any loser with a couple thousand can self-publish his book--it doesn't mean you'll get read.

dlbpharmd wrote:Most of the time, a CD from any one group has one good song and 10-12 shitty ones. Or, like the latest Eagles release, 2 CDs full of shitty songs (go back into retirement guys.)

dANdeLION wrote:What in the hell do you have against the KW Anthologies?!?!?!?

Malik, I'm not arguing about the illegality of downloaded music. It's clearly a copyright infringement. However, when I buy a CD (a rare occurence nowadays) then I ought to be able to put it on my computer and to do with that as I please for my personal use. CDs are entirely too fragile, especially when one has 2 little girls with sticky fingers running around the house.

Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies’…”

“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.

the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.