In on-air debate with RIAA executive, Post reporter who accused the group of trying to outlaw copying music to a computer doesn't answer why he omitted important facts from his story. RIAA president argues that the paper has helped "mislead consume
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CD that you legally own as long as it is for your own personal
use. You can transfer these copies to portable players and other
hard drives and devices that only you have access to. You do
not have the right to make these copies available to someone
else, even if no one has copied them. The act of simply making
them available is illegal.
You do not have the right to circumvent any copy protection
(DRM) that is placed on a CD or MP3 file, even for your own
personal use and even if no copyright infringement occurs.
(Digital Millennium Copyright Act prohibits this). The law
basically grants you to the right to make copies, for your own
personal use, of any copyrighted works that you own provided
that they are unprotected (no DRM). This allows the copyright
holder to place any copy restrictions on works if they choose to
do so. (This is why people believe that DRM is evil.)
You do not have the right to freely acquire an MP3 or a copy of a
CD that was made from a CD that you do not own, even if you
legally own a copy of the same CD. The copy must be made
from the CD that you own. This is why those services that tried
to give you access to MP3s on their servers, if you could prove
you had the original CD, were shutdown. Also, the services that
provided you access to MP3s on their servers if you bought the
CD from their online store were shutdown as well for the same
reason.
Then later they can argue if you rip a CD and place it on your computer but you also happen to have an open WIFI connection therefore you are sharing and because a ruling in their favor over a "shared" folder applies (because we all know law makers are not necessarily knowledgeable about technical stuff) more laws gets passed.
Then it goes from open wifi to wifi without a strong enough encryption technique used. Then later its not just shareable folders but unencrypted folders follow by having your car windows rolled down so other people can hear your music etc. etc. etc.
I personally don't care about knee jerk reactions against the riaa because the whole music industry has been screwing with consumers with knee jerk reactions for the last decade. Think root kits and spyware.
DOES disallow is circumventing encryption to MAKE those copies in
the first place. CDs aren't encrypted, so it's a moot point. DVDs
ARE encrypted, for instance, so even though fair use, personal
copies for an iPod are legal, you have to break the encryption, so
you're violating the DMCA.
... YET!
Everything hinges on the term authorized copy versus unauthorized copy. Here is what the brief says:
"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"
The RIAA considers the authorized copy of the recordings to be the ones on the CD. Its not the placing of the converted MP3's into Howell's shared folder that makes them "unauthorized". Its the actual copying from the CD to the computer that turns the sound recordings from "authorized" to "unauthorized" and its the placing into the shared folder that makes the act of illegal distribution possible. Whether a copy if authorized or unauthorized has a lot to do with whether an act is legal or illegal under copyright law.
This is what the RIAA says from their own site in regards to copying music:
http://riaa.com/physicalpiracy.php?content_selector=piracy_online_the_law
"It?s also okay to copy music onto special Audio CD-R?s, mini-discs, and digital tapes (because royalties have been paid on them) ? but, again, not for commercial purposes."
This means that any copies you make onto regular data CDR's is not OK and therefore an unauthorized copy.
Furthermore "Beyond that, 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"
Sherman for the RIAA states" ...there is one foolproof way of discovering the RIAA's policy on personal use: check the record.
"Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use)," Sherman said. "Not a single claim has ever been made."
Not prosecuting does not mean that the RIAA considers copying music to your computer legal. It merely means that they have elected not to try and go down that road in trying to win a court case that the movie industry could not win against Sony. As I said at the top of this comment...The RIAA is being disengenous in trying to keep the discussion to narrow grounds concerning the Howell case only.
So what is the upshot to all this? The RIAA officially considers any copy transferred to your computer as unauthorized but the have elected not to prosecute. Their official position is all based on what happens with authoizixed copies versus unauthorized copies. The courst cases that are referred to in the brief are all based on authorized versus authorized. Therefore, the RIAA considers all unauthorized copies to be illegal but have just not prosecuted anyone for it.
Why have they not prosecuted? Because they wouldn't win and they are working to prevent copying either via hardware or software. Since under the DMCA, if you circumvent DRM you are breaking the law, they could then go after you for making "illegal" copies. They probably wouldn't but they would retain the right to do so.
In fact, several RIAA-representatives have flat-out claimed that "Fair Use", is NOT a legal-right.
In short...
>> "RIAA shreds Washington Post story"..?
...HARDLY.
Of course, nobody would dare actually push such a suit (yet) but a sufficiently narrow reading of law would support such a conclusion.
Give 'em enough inches and it will eventually happen...
http://blog.wired.com/27bstroke6/2008/01/riaas-cary-sher.html
Lawyers can't just "misspeak" at trials and then not correct themselves, as Sherman says the RIAA did when they argued in court that CD copying for personal use was illegal. Moreover, it seems that not one, but two RIAA lawyers made that argument during that trial, and it probably did affect the outcome. No correction was ever made during the trial. So either Sherman was lying, or a huge miscarriage of justice occurred because of the RIAA's incompetence.
It seems like the longer people have to look at Sherman's comments during this debate, the more lies, doublespeak and just plain sleaze they manage to turn up.
Marc Fisher did exactly what a good journalist is supposed to do. He asked the right questions and he caught Sherman in a still-unfolding web of lies.
- I will post it again.
- by shadowfort January 11, 2008 5:23 AM PST
- This is the second time I have seen the story posted here. Looks like most everyone missed it the first time since there were only 9 responses. So here is my 2 cents again.
- Like this Reply to this comment
-
Showing 2 of 2 pages (65 Comments)I wish I had the whole interview to see what they all said, but form the article it sounds like the RIAA is trying to obscure their stance on the issue until the can get all the laws and presidents in place to make you pay for each copy of the song you have in what ever format you have it in for each time you listen to it. That is a slight exaggeration, they just want you to pay for each copy you have in each format you have.
Let us take a look at some excerpts form the legal brief to see what they really say.
?First, Defendant actually distributed the 11 sound recordings listed on Exhibit A to Plaintiffs? Complaint from the KaZaA shared folder on his computer to Plaintiffs? investigator, MediaSentry ?
I disagree. If downloading the songs is Illegal, the Plaintiff illegally acquired the copies of the 11 songs from the defendant. The defendant was following his right of display:
TITLE 17 CHAPTER 1 § 109(c)
?Notwithstanding the provisions of section 106 (5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. ?
Next
?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. ?? The .mp3 format is a ?compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.? ??. 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. ?
Here is one part they are arguing that I think is real sticky. One is the part of conversion to the MP3. So are they saying if he left the song in the original format and put it in his share file it would be ok? Probably not. To me the plaintiff is saying that Both acts separately violate copyright law.
The RIAA is saying it was miss quoted and the article focused on only one sentence in the Legal Brief about the Shared Folder. That the inclusion of ?shared folder? was omitted. So what, I have a Shared Folder on my brand new computer that I did not put there. It came as part of Windows. They did not say KaZaa Share Folder. They simply say ?SHARED? folder. How long before they drop that word too?
However:
TITLE 17 CHAPTER 1 § 109(a)
?Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.?
Now the RIAA is not deputing that he is or has ownership of the original copy of the songs he has legally purchased. Dose that not give him the right to do with his property what he wants? I think it should, after all he purchased the songs. Moreover dose not the sale of the songs transfer the ownership of that copy to the purchaser?
?Moreover, in adopting the language of section 106(3), Congress specifically noted that that section established the exclusive right of publication and gave the copyright owner the right to control the first public distribution of an authorized copy of the work. ?
I think for a lot of these works we are well beyond ?first public distribution?. Unless they person bought the copies of the songs directly from the artist, the copies have gone through at least two people to get to them. The record company, that bought them fro the artist, And the distributor that bought the songs from the record company. Yes, that is the most simple model there could be, but it is accurate. After all, the songwriter should be the copywrite holder. It is their work that is getting passed off as the RIAAs.
Now there are three things in this that are some red flags beyond what I have already written. One from the Brief, and two from the article. First from the brief:
?Plaintiffs should be allowed to prove actual distribution based on circumstantial evidence. ?
I know that ?circumstantial evidence? can be made to look a lot different than it is. Facts can be slanted enough as it is.
"The Sony person who (Fisher) relies on actually misspoke in that trial," Sherman said. "I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry."
How did she miss speak? Jennifer Pariser, the head of litigation for Sony BMG(a lawyer), was asked a question about coping music a person Legally Purchased, not Downloaded or Ripped from CDs. She is reported to reply:
?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? ."
She said a Purchased song. How is there any doubt in what she meant to say. If she had any doubt about the question, she could have asked right then and there for clarification. After all she should know how it work in a court room.
"Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use)," Sherman said. "Not a single claim has ever been made."
In that statement I hear a very loud YET!!!
But hey, this just how I read it.