It would appear that the recording industry isn’t quite done with its years-long project of immolating itself rather than adapt to changing technology. Having apparently determined that the fact that they won some judgments in the course of their quixotic quest against file sharing proves that they were right to engage in it, no matter the public relations cost, they now want to go after consumers who make personal copies of music CDs they’ve paid for:
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.
Obviously, I haven’t seen the legal documents filed (and this isn’t my area of expertise) but such a claim would seem to fall under 17 USC 10. It’s not clear how this lunacy squares with 17 USC 1008:
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
The intent of the statute (which was, it is worth noting, written 15 years ago) is pretty clearly to prevent commercial piracy while protecting consumers who simply make archive copies, mix tapes, and the like. But, having scanned over the statute, it must be acknowledged that the definitions relating to the “devices” in question do not explicitly include personal computers. As such, I suppose one could make a non-frivolous argument that personal recordings on personal computers aren’t included in the lawsuit exclusion. In short, this ham-fisted nonsense is based on a very tendentious parsing of a statute which has become mildly ambiguous because Congress hasn’t updated it recently in light of new technology.
This whole episode reminds me, as so many things do, of the immortal wisdom of Real Genius:
Professor Hathaway: That’s a wonderful story, Bodie. I noticed you’ve stopped stuttering.
Bodie: I’ve been giving myself shock treatments.
Professor Hathaway: Up the voltage.
UPDATE (1/7/08):
Never mind. It turns out that the reporter simply got it wrong:
According to the brief, the authorized copies Howell made became unauthorized copies once Howell put them in a shared folder, presumably the Kazaa shared folder…. If you rip a CD and place the MP3s into a folder to which only you have access, the copies are authorized. If the files are in a shared folder, they’re “available” to third parties, which is a copyright violation….
[T]he RIAA did not argue that ripping a CD you legally own is illegal or that “the act of transferring music from a legally-purchased CD is in and of itself illegal, even if the file is not being shared.”
That’s what I get for trusting that a journalist for a major national paper would actually get the story right. Patterico sees vindication for Helen Thomas in this tale.
