What Is The RIAA's Real End Game?…

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The RIAA is on the attack again, but this time, with a slightly different spin…
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You might have heard about the RIAA’s case against Jeffrey Howell. He was recently sued by the RIAA for downloading and sharing music files on his computer, an act that, even if widely practiced, is legally wrong. But this case seems to have caused an uproar because of the following snippet that was found in the brief against Mr. Howell:

Defendant admitted that he converted these sound recordings 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.

The uproar seemed to peak when the Washington Post published an article at the end of December claiming the Recording Industry was now going after not just file sharing but ‘unauthorized’ personal use of legally purchased media as well.

Without a doubt, that would be a scary development…

The statement in the brief is certainly ambiguous. It does express a new concept of ‘authorized copies’, and loosely claims that both the conversion of files to .mp3′s and their placement into a ‘shared folder’ contribute to making them ‘unauthorized copies’. While this wording may not appear to be exceptionally threatening now, if any of it makes its way into a future ruling in this matter, it could help create a base of precedent that the RIAA could leverage in the future to go after CD rippers.

But do they really want to?…

Yes and No. The recording industry has made no secret that they believe any use of media beyond direct playback is illegal. During testimony at a prior file sharing case, Jennifer Pariser, the head of litigation for Sony BMG, asserted:

When an individual makes a copy of a song for himself, I suppose we can say he stole a song.

This isn’t so much a legal strategy as a business strategy. What the industry wants to do is change the rules and convert all different types of heretofore legal activities into new streams of revenue. If they need to sue some people along the way to make that happen, so be it.

Are they really allowed to do that?…

All that said, many bloggers have pointed that this type of copying is a protected action under the Audio Home Recording Act of 1992.

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.

While this may seem to cover ripping, a closer reading leads me to conclude that this probably isn’t the case. Specifically, there are two definitions within the statute that may be problematic.

According to the statute, the definition of “digital audio recording device” is:

“…any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.”

(Emphasis mine.)

Similarly, the definition of “digital audio recording medium” is :

“…any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device.”

(Emphasis mine.)

Unfortunately for those looking for safe harbor in this act, neither of those statutory definitions would include the typical, general purpose computer or any disks or removable media. To make it apply, the courts would need to extend the definition of “device” to include software such as iTunes and other non-physical music players, and to extend the definition of ‘media’ to refer to folders and flash cards used to hold music.

As counterintuitive as it may sound, this is likely what the RIAA wants to see happen…

The reason for that is simple. Under the existing statute, if iTunes were to qualify as a recording device, it would be required support the Serial Copy Management System and be subject to mandatory royalty payments.

The serial copy management system allows a song to be copied to one device, but could then require that the hardware prohibit any copying beyond that if certain bits are set. The device the songs were copied to would become the ‘device’ subjected to the required royalty payment. This scheme is mandatory for all recording devices covered by this statute.

The RIAA is very shrewed…

If they were to litigate this issue, and the courts determine that ripping CD’s to computers isn’t a protected activity, they could then use that ruling as leverage with Apple et. al. to negotiate a revenue stream for the right to rip CD’s. On the other hand, if the court determines that ripping CD’s is a protected activity, they can use that as the basis for a judgment that defines iTunes and iPod’s as recording devices subjected to copy controls and royalties.

Either way, they would end up winning…

I have no doubt that this is where this is all heading. Ultimately, the RIAA can’t sue every individual that wants to rip their CD’s. That isn’t a viable approach, and certainly doesn’t work over even the near term. The recording industry has been itching to get a piece of the iPod/portable device revenues, and they see this as a way to force that to happen. I think the only thing staying their hand is concern over consumer blowback negatively affecting their businesses.

And they are close to the point where they don’t even care about that…

Though they want to portray themselves as the guardians of virtue and defenders of the poor artists, I think it is really important to remember that the RIAA is simply a well funded industry advocacy group. Their only interest is supporting the record companies. They are, in a word, lobbyists. And like any other other well funded lobbyists, they are looking to influence the legal system (at your expense) in whatever way suits their client. Logic, morality, justice, civic good – none of those matter to them at all. They want to find a way to require you to not just buy a CD, but to also buy the digital download, or buy the ringtone, etc. They want that to happen not because it’s right or fair, but because their client will get to charge you three times instead of once for the same basic thing.

Litigation on this point is coming. It’s just a matter of time.

The file sharing lawsuits were just a warm up – the real fight is just getting started…

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