RIAA Goes After Fair Use

In the case Atlantic vs. Howell, husband and wife Jeffrey and Pamela Howell have been accused of file-sharing over the KaZaA network. Their defense has been that although there are plenty of MP3 files on their computer, the files were not shared but were ripped from purchased CDs for personal use only.

Possibly to increase their chances of a win, a supplemental brief filed by the RIAA contends that ripping music from legally purchased CD’s is illegal. This would eliminate any escape the Howells have. If successful, it would also mean that anyone who ever ripped a CD for their iPod or other MP3 player --- would now be a criminal.

Right on page 15 of the brief linked above it says:

It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use.

So, according to the brief, ripped CDs = unauthorized copies.

Of course, the Howells could lose their case while the argument about CD ripping is dismissed, but time will tell. The defendants have until January 11th to respond.

Notably, this goes against statements made by the RIAA's lawyers in the case of MGM vs. Grokster. It also contradicts the RIAA's own website, which says:

... 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.

However, it also follows closely the comments made by Jennifer Pariser, head of litigation at Sony BMG, who said during testimony in the Jammie Thomas case that:

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." Making "a copy" of a purchased song is just "a nice way of saying 'steals just one copy'."

It could be said this "test" of Fair Use has been a long time coming. Obviously more to come.

Update: The Washington Post covered this, and they have issued a retraction, saying the fact that the MP3 files were in a "shared" KaZaA folder was the reason they were illegal. While I already knew that, I'm still concerned over Pariser's statement above.