Thanks to the Impact blog and the IPKAT for drawing this site’s attention to the action brought by the RIAA against one Jeffrey Howell for ‘just’ copying CDs from disk to disk (CD to computer). The Washington Post has the story here but the reaction is at least as interesting as the story itself. And the most interesting point? – we are at last starting consultation on making this allowable in the UK.
RIAA v Howell
In summary, The Washington Post reports that Jeffrey Howell kept a collection of about 2,000 music recordings on his personal computer. The newspaper says that the RIAA’s brief argues that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings. The RIAA is quoted by The Post as saying: "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." 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."
Reaction – and a Little Hysteria
The reaction, including that of The Washington Post and the RIAA, has been interesting.
The Washington Post describes the RIAA's legal crusade against its customers as ‘a classic example of an old media company clinging to a business model that has collapsed’. The piece reporting this on The Register is littered with comments questioning the sanity of the RIAA and pointing out that the recording industry is actually relying on sales of music for MP3 players and that all leading PC software (and Apple software) used for playing music encourages the copying of tracks in this way. One of the persons commenting there (Highlander) makes the more considered point that the action might not succeed and reproduces an excerpt from the relevant US Code and many refer to fair dealing. Many commenters smell the possibility that there is more to the case than at first appears – and of course they are right.
In truth, the RIAA case is principally about alleged illegal distribution. The RIAA Web site entirely fails to deal with the case (as at 4 January) and therefore they seem happy that a vast number of people are under a misapprehension about the case and the RIAA stance. And perhaps they are. They may be looking to have their cake and eat it too – by pleading sensibly but letting the world in general worry that copying for personal use may lead to legal proceedings. If that ‘cake and eat it’ attitude really is their stance then they need a more assertive PR company because they are reaping a harvest of resentment.
It seems to have been left to others to clarify the position. Greg blogging at Ten Reasons Why says this:
When you read the brief it quickly becomes clear this isn't a case about converting CDs to MP3s, but a case about someone who plopped his converted MP3's into the Kazaa file-sharing service. What the brief actually says is:
Defendant admitted that he converted these soundrecordings from their original format to the .mp3 format for his and his wife’s use. . . . 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." (p. 15)
Note the "and" in that second sentence. This is boolean logic at it's simplest. Not once in this brief -- not once -- is it even remotely implied that "copy[ing] their CDs onto their computers," as Fisher said, is an illegal act in and of itself. The entire case revolves around taking those MP3s and making them available to other people via the Kazaa file-sharing service. Had Howell just converted his CDs to MP3s and dropped them into a location on his computer that wasn't shared with millions of other users, we might assume that there wouldn't be a lawsuit taking place.
In other words, in the Atlantic v. Howell brief, the lawyers for the RIAA are not objecting to a user copying CDs onto a computer, but to a user putting the ripped audio files into a shared folder that he knew would distribute it via the Kazaa file-sharing service -- precisely what the RIAA has been objecting to for nearly a decade.
I'm no apologist for the RIAA; I loathe their policies and their tactics. But loathing the RIAA isn't an excuse for letting sloppy, misleading, and irresponsible reporting go unnoticed. I haven't seen any coverage of this case that has actually reported the full context, i.e. that the RIAA was objecting to the converted files in question being shared over the Kazaa service.
There's nothing new -- or newly nefarious -- here. The only new thing here is that the defense lawyers are being much more clever this time around about taking language about "unauthorized copies" out of context and spinning it to their advantage in the media and blogosphere. And the media and bloggers are eagerly taking the bait without doing the simple legwork that any resepectable journalist, blogger, or thinking person should do.
So it’s all a storm in a teacup – and a teacup far away from the UK at that. But there may be serious lessons to be drawn for us.
Any UK Lessons?
First, UK copyright law means that it actually is still illegal here to make personal copies and, despite a recommendation in the Gowers Review to make it legal, we do have a whole business model based on that illegality. (If you really want to frighten any of your clients involved in this field and ensure that they ‘hold tightly onto nurse’ then you might like to refer them to the Proceeds of Crime Act 2002 or the darkly humourous Serious Crime Act 2007, sch. 1 paras. 28 and 30.) Secondly, the reaction to the story shows just how hated the institutional defenders of copyright have become – some of the reactions are juvenile and pathetic but some are quite frightening. Thirdly, the rhetoric in defence of copyright seems to be getting more and more extreme (see the Patry Copyright Blog on this) and, my personal favourite, the RIAA Web site’s claim that piracy is ‘too benign’ a term to use to describe breach of music copyright (obviously much worse than the rape and murder normally associated with piracy). And finally, the biggest lesson is that it appears to be almost universally acknowledged that copying your CDs is OK.
Consultation by the IPO
This last point is crucial because on 8 January 2008 the IPO is launching a consultation on the Gowers Review recommendation that the government should introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect and that there should be no accompanying levies for consumers. See http://www.ipo.gov.uk/policy/policy-issues/policy-issues-gowers/policy-issues-gowers-flexibility.htm
Why it has taken more than a year to launch consultation on a report which was prepared in some haste only the IPO can say. But judging from the reaction to the RIAA v Howell case and the admitted behaviour patterns of virtually everyone I know (including copyright lawyers), I can save them a good deal of effort. The fact that the argument is finely balanced really does not matter. Skip the consultation - the world has already moved on and legalising this form of copying is a social necessity. Do it now.