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Record Industry to Consumers: Even If You Bought The CD, You're Still A Crook

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing.

Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle.

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: 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.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

RIAA's hard-line position seems clear. Its Web site says: "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."

They're not kidding. In October, after a trial in Minnesota -- the first time the industry has made its case before a federal jury -- Jammie Thomas was ordered to pay $220,000 to the big record companies. That's $9,250 for each of 24 songs she was accused of sharing online.

Whether customers may copy their CDs onto their computers -- an act at the very heart of the digital revolution -- has a murky legal foundation, the RIAA argues. The industry's own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it "won't usually raise concerns," as long as you don't give away the music or lend it to anyone.

Of course, that's exactly what millions of people do every day. In a Los Angeles Times poll, 69 percent of teenagers surveyed said they thought it was legal to copy a CD they own and give it to a friend. The RIAA cites a study that found that more than half of current college students download music and movies illegally.

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

As technologies evolve, old media companies tend not to be the source of the innovation that allows them to survive. Even so, new technologies don't usually kill off old media: That's the good news for the recording industry, as for the TV, movie, newspaper and magazine businesses. But for those old media to survive, they must adapt, finding new business models and new, compelling content to offer.

The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."

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." And, perhaps, for firing up your computer.

By Marc Fisher |  December 29, 2007; 10:00 AM ET
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Please email us to report offensive comments.

So, if I make a backup copy for my own personal use -- which the law DOES allow, thank you very much, RIAA -- you expect me to pay for my new "second copy"? How many times am I expected to pay for the same music?

Perhaps I should submit my invoice to you, seeking reimbursement for all the duplicate copies of vinyl records, cassettes, and CDs I've purchased over the years, to replace copies that I have worn out, lost, or accidentally destroyed. That doesn't even count the additional copies I have had to purchase because of technology (I can't play a record in my CD player, nor a CD in my cassette machine.)

I ask again - how many times do I have to pay for the same music, without fear of being hunted down like the criminal you define me as?

Posted by: Bob Shegitz | December 29, 2007 10:57 AM

Geez. What a pack of jerks.

Posted by: h3 | December 29, 2007 12:28 PM

Copyright law allows that a consumer, i.e. the person who purchased the CD, cassette tape, album, etc. has the right to make a copy for their personal use. Are the music companies challenging this article of the law?

Posted by: DCDenizen | December 29, 2007 4:49 PM

As well as pointing out problems with
copyright law, this also points out
problems with the legal system, in
that they're scaring people into
giving way without a court trial.
I suggest the following changes:

A. Punitive damages (including
noneconomic damages) should not
be possible without the same
level of proof and protections
for the accused as in a
criminal trial (one is trying
to punish the defendant in
such, after all, not just
get back what is (allegedly)
owed), with one exception -
countersuits (see below);

B. If a plantiff loses a suit, not
only should the plantiff be
required to pay all costs
for the defendant (unless the
defendant is a government
or similarly able to
essentially get money at a
close to unlimited rate
(e.g., monopolies would fall
under this)), but a countersuit
should be done with punitive
damages being considerable and
easy to get (since that the
plantiff lost means that they
have already been found to
not have a valid case).

The behavior of the RIAA (and similar
bunches, like the movie industry) is
sufficiently bad that I've been
boycotting buying any RIAA (as opposed
to artist-issued) CDs, renting new
movies, etcetera for the past 5+
years. I haven't missed it - they
haven't come out with anything good
enough to make me regret this
decision. All the music that I've
come across that is good enough to
make me want to buy it has been from
artists not going through the RIAA,
and there haven't been any movies
good enough to tempt me to watch them.

Posted by: Allen Smith | December 29, 2007 5:40 PM

I think Marc Fisher compressed the facts of the case a bit, by leaving out the fact that Howell made his MP3s available in a shared file on Kazaa. Howell claims that he did this in order to transfer his tunes from one PC to another (which seems a bit strange to me; he could have done this much easier and saved himself a lot of trouble by using something like Laplink or file sharing via a router). What RIAA is arguing is that Howell violated copyright law by making the tunes available to others.

Posted by: Annandale | December 29, 2007 6:56 PM

Howell distributed these mp3s to other people who didn't own the cds. That is the issue at hand, it has nothing to do with whether or not he owned them- and anyone who thinks it is can't read English- it has to do with distributing this music over the internet without the permission of the bands or record labels. Marc, you're dead wrong, your facts are incorrect, and this story needs an update.

Posted by: DCer | December 29, 2007 9:47 PM

All the music that I've
come across that is good enough to
make me want to buy it has been from
artists not going through the RIAA,
and there haven't been any movies
good enough to tempt me to watch them.

My grandfather feels the same way- welcome to old age pal!

Posted by: Anonymous | December 29, 2007 9:48 PM

As always the devil is in the details. This points up the problem with blogs, very few filters and no editors.

Posted by: NW | December 29, 2007 11:38 PM

Yes, it's true that the RIAA accuses Howell of distributing music via a sharing network. See the actual filings in the case here:

But that's not the point I'm making in the column. What's new in the Howell case is the decision by lawyers for the recording industry to argue that even a legally-obtained CD may not be transferred to an MP3 file on your computer. That argument can be found here, on page 15:

Posted by: Fisher | December 30, 2007 12:08 AM

The RIAA is full of crap. They're playing semantic redefinition games, and using whoever they want to try to test their legal theories. The people they litigate against are fodder to their efforts to take rights and gain profit from people.

They'd rather you have no way to store music on any media they didn't control, for any period of time. Too bad the world does not work the way they want it to, too bad for them. It never will either.

They haven't figured out how hated they are, how can that be?

Posted by: NotOrwell | December 30, 2007 4:01 AM

screw the RIAA. I'm not buying any cds any more from their greedhead record mobs.

Posted by: axl | December 30, 2007 6:46 AM

This is about perception, not reality. The RIAA knows that it's perfectly legal to make a copy for yourself - that's what the "fair use doctrine" is all about. What they're doing here is hoping to create the illusion of illegality of fair use by constantly saying that it's against the law for people to copy their own discs. Even if something is not true, if it's repeated loudly and publicly enough people tend to start believing the lie. Politicians use this technique to great effect...
The RIAA is an organization of liars and hypocrites - the music industry has constantly played fast and loose with artists' royalty checks and other monies owed to the artists since records have been put out. Let's not forget that the recording industry, just a few years ago, settled the allegations of price-fixing CDs by agreeing to pay millions of dollars in rebates to affected consumers. If consumers want a remedy to the RIAA and their ilk, they need to lobby their local legislators and press home the need for copyright laws to be restored to their original intentions. The past several years have seen our legislators grant changes to copyright holders that give them almost never-ending rights to copyrights. Copyrights were never meant to be held in perpetuity; the music and movie industries would like to change that, obviously. The deep pockets of the movie and music industries are always open to legislators willing to short-change consumers by inserting industry-written clauses into bills that deal with copyrights and fair use. Contact your Congresscritters and let 'em know that you're strongly against losing your fair use rights. Also, you may consider joining groups such a the Electronic Frontier Foundation whom describe themselves thusly: "EFF is the leading civil liberties group defending your rights in the digital world" More info on fair use in the link below:

Posted by: J.P. | December 30, 2007 10:39 AM

The business models have already changed. The RIAA needs to understand that people are no longer going to pay for packaging unless the content is compelling. People can buy or rent digital recordings from iTunes, Rhapsody, and other legal channels that consumers have demanded. I buy a CD these days only if the album as a whole is strong.

Posted by: Ross | December 30, 2007 10:47 AM

The Audio Home Recording Act (United States Code Chapter 17, §1001-10) specifically gives consumers the right to make copies of music for their own use (it actually even gives consumers the right to distribute a small number of copies to friends and family as well). So I'm not really sure what's going on.

Posted by: Dave | December 30, 2007 11:21 AM

RIAA == Record Industry Army of A**holes

Posted by: Fred | December 30, 2007 12:41 PM

I just read through the PDF of the brief and the issue is clearly not conversion of CD to MP3 format. The key is that after the defendant did that, he put the MP3's in a folder shared to the Internet and some investigator downloaded 11 of them from that folder. So Mr. Fisher's comment that _legally-obtained CD may not be transferred to an MP3 file on your computer_ isn't really correct. It's the act of putting them in a shared folder that's the infringement.

Posted by: Peggy Miller | December 30, 2007 1:59 PM

Even with the more limited interpretation, there are troubling aspects to the RIAA's position. For example, I copy a CD to my iTunes folder in order to play it on my iPod. If I have network back-up at home, my files are now on a shared disk. Or, if I make documents folder public so that I can transfer other files, then I'm as liable as the person who used Kazaa. Given this interpretation, the RIAA could sue me for millions even though the files never made it out of my home.

The RIAA has shifted to legal extortion. I don't give a damn how many K-Street lobbyists they've hired. Enough is enough.

Fortunately, there is one firm with deep pockets who has been indirectly targeted by the RIAA: Apple. If the RIAA succeeds in this tack, every iPod user becomes liable. It's time for Apple to learn what Google and Microsoft have, if you don't have a presence in Washington, you're roadkill.


Posted by: Fairlington Blade | December 30, 2007 3:14 PM


I read several pages of the legal paperwork you linked to and found no evidence that disagreed with my statement- that the case is about illegal distribution. I would suggest reading it again because the case is described in black and white about distribution. You have only given me more ammunition here that you're exaggerating by providing legal documents that show your article to be disingenuous at best and in violation of journalistic ethics at worst. What's up with that? You got to choose the documents that prove your point and they don't.

Posted by: DCer | December 30, 2007 3:15 PM

I wish Marc had touched on the BIGGER problem here which is all the kids downloading music without paying for it. It is quite common for kids to download 1000 plus songs. The RIAA is going after many college kids and parents can expect to pay big bucks to get their kids out of trouble.

Posted by: FCPS Parent | December 31, 2007 9:45 AM

Excellent article, Marc.

Your commenter "DCer" (who sounds like he could be DC-based Matthew Oppenheim, the RIAA's head lawyer, in disguise), is the one who needs to get his facts straight.

1. The case is not about distributing.... it's about "making available for distribution", a non-existent concept in copyright law which the RIAA and MPAA have invented for purposes of these litigations. The RIAA has zero evidence of any "distribution" by Mr. Howell.

2. If the case is about making available for distribution, why did the RIAA -- when asked by the judge whether the copies themselves had been illegally obtained prior to their being made available -- say "yes" and add the following non-bracketed language:"'It is undisputed that Defendant possessed unauthorized copies... Virtually all of the sound recordings... are in the ".mp3" format for his and his wife's use... Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and [they are in his shared folder] they are no longer the authorized copies...'"?

If their position was as DCer states, they would have said "we have no reason to think the copies themselves were unauthorized. Our complaint is with his having made them available for sharing after he copied them." Is there anyone here dumb enough to think the RIAA lawyers couldn't have written that if that's what they meant? I don't think so.

They were trying to take advantage of a litigant who had no attorney, and trying to see if they could slip something in that might wind up getting them some 'authority' for their radical view.

Posted by: Ray Beckerman | December 31, 2007 1:17 PM

To FCPS I can only say Marc was writing about the case that was before him. You are talking about a case that did not exist here. Mr. Howell's copies were not downloaded, according to the RIAA's own papers..... they were copied by him to his computer from his cd's, which he had purchased.

Posted by: Ray Beckerman | December 31, 2007 1:20 PM

I think it is nfair to demonize the recording industry in many of these cases. These artists are being denied revenue because people are stealing the music rather than paying for it. Many universities are receving four times the number of complaints they received last year. Ohio Univ went after 1300 kids who were the worst offenders. The RIAA was asking for millions of dollars in restitution. Translation: Parents will spend tens of thousands of dollars both in legal fees and ultimately in fines. Kids and parents are way too casual about the risks involving downloading.

I know this case is different. I think they would have to prove intent to distribute not just that he copied it onto his computer-big difference.

Posted by: FCPS parent | December 31, 2007 2:13 PM


IANAL, but isn't the fact that the RIAA contractors (allegedly) downloaded 11 of the files "proof" of distribution?

Do you not see the allegations that they downloaded 11 of the songs? If so, how can you say "Mr. Howell's copies were not downloaded, according to the RIAA's own papers"? They even went as far as to identify the file (systemlog.txt) that allegedly showed "proof of Defendant's distribution of these 11 sound recordings"!

I appreciate having a lawyer speak out against *AA transgressions, but it's simply not helpful when you turn a blind eye to the facts when you're up on your soapbox.

Posted by: cerdo | January 2, 2008 9:58 AM

I understand Ray's comment this way
He was refering that HOWELL did not download the songs. He was not refering to the unlicensed Investigators that allegedly downloaded 11 from him!

So he's not "turning a blind eye to the facts" as far as I understand the documents I have read and understand them.

And on top of this who did what, those 11 are AFAIK not in violation of your american copyrightlaw since it must be actual distribution of phonorecords or copies of copyrighted works to [b] to the public [/b] (if i were a lawyer I had here the citation of Nimmer IIRC that beginns with "not every distribution is a violation...")

Posted by: Alter_Fritz | January 2, 2008 12:19 PM


I too looked at page 15 of the atlantic_howell_071207RIAASupplementalBrief document you point us at.

The RIAA's argument is clearly about distribution of the MP3s via Kazaa, not the mere existence of the MP3s themselves (as you claim).

I don't understand your position -- I don't understand how you are reading this brief to suggest that the RIAA is suing the Plaintiff merely for having ripped MP3s for his own use.

Posted by: fredm | January 2, 2008 12:19 PM

When SoundExchange recoups royalties for bands that aren't even part of the RIAA and you have the Canadian equivelent saying "Oh buy the way you need 1 for a CD player, one for the card, one for your computer and if you actually want it on the HD you need touse soemthing like DRM-ladened ITunes" Is in any surprising that such aggressive greed is having less then positive reactions? This isn't about Copyright violations or infringments, it's about the fact that the RIAA is losing it's control over music and it's distribution thereto.

Posted by: Doug | January 2, 2008 3:39 PM

If Sony can sell an mp3 player or atrac player with included software to create mp3's or atrac's on my computer's hard drive, how can Sony BMG's trade group sue me for using it in the way it was intended? I'm sorry, this is the dumbest thing I've ever heard.

RIAA has already argued that personal copies are fine, but "making available" will get you in hot water. They've been slowly moving away from the making available argument. Perhaps now they're going after the Grand Poobah, the Holy Grail of copyright re-writing - making digital copies entirely illegal. Should have saved all my receipts....

Posted by: Billy | January 2, 2008 3:54 PM

" has nothing to do with whether or not he owned them- and anyone who thinks it is can't read English"

Page 15, paragraph 1, sentence 1... "It is undisputed that Defendant possessed unauthorized copies of Plaintiff's copyrighted sound recordings on his computer". Possessing copies is not in dispute, but the word "unauthorized" is. The word "unauthorized" is a rider piggybacking on the undisputed issue.

Page 15, 9 lines down - '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"'. This careful wordsmithing comes off as the definition of and purpose for .mp3, and this is not the case.

The argument here is that in making its case that Howell did make his copies available, the legality of personal mp3 copies is being brought into scope. To say "Defendant possessed unauthorized copies of Plaintiff's copyrighted sound recordings on his computer" says just that - legally owned music placed on your hard drive is unauthorized. How in any way can you read that otherwise?

DC'er - send me your address and I'll send you a copy of the Oxford or Websters, and you should throw out that RIAA dictionary.

Posted by: Billy | January 2, 2008 4:58 PM

"But that's not the point I'm making in the column. What's new in the Howell case is the decision by lawyers for the recording industry to argue that even a legally-obtained CD may not be transferred to an MP3 file on your computer. That argument can be found here, on page 15:"

No, it doesn't say that on page 15. It says that once an MP3 copy is made, it's no longer an authorized copy of the file. The RIAA is not suing because of unauthorized copies of the songs on the machine. It's suing because the copies are available for distribution via a Kazaa shared folder.

The whole brief is focused on distribution through Kazaa. Why on earth would you write this article and leave out this absolutely essential piece of information? It's very irresponsible of you, and I would hope that the Washington Post, and you, would issue a clarification.

Posted by: Shelley | January 2, 2008 5:20 PM

"Your commenter "DCer" (who sounds like he could be DC-based Matthew Oppenheim, the RIAA's head lawyer, in disguise), is the one who needs to get his facts straight."

Wow, talk about keeping the level of discussion on a higher plane...

Posted by: Shelley | January 2, 2008 5:27 PM

So, Shelley, let me get this straight. You paraphrase that "once an MP3 copy is made, it's no longer an authorized copy of the file". Does this not mean that a legally purchased cd ripped to mp3 format is not authorized? There are two points being made...

1) copies were made available
2) the copies were unauthorized

Point two is huge. It's bringing a whole new movement into an established strategy. By doing this, a win on point 1 could allow point 2 to ride. If point two is citable as precedent, Sony could sell me software, then sue me for using it.

The definition of mp3 insinuates that mp3's were created for the purpose of illegal sharing. Wrong. It's the preferred format. I have most of my collection in mp3 format, and have never shared a single one.

The wording of page 15 should be challenged. Calling copies "unauthorized", followed by the misleading definition of mp3 sums to a conclusion that mp3's are unauthorized.

Posted by: Billy | January 2, 2008 6:36 PM

DCer, Shelley, ya needs to read yer law books methinks.

* "making files available" is not an actionable cause for litigation. Period.

PERHAPS (and that's a big distinction) perhaps the downloading can be argued to be actionable, however I doubt it. Copyright infringement (and that IS what this is all ultimately about) has to prove that the intent and use of the resulting song or movie file was inappropriate. This requires a trial. Only one has happened, and it was flawed by an unknowledgeable judge's blithely incorrect jury instruction.

* Billy (above) hits the nail on the head. The nearly inperceptible nuances of every one of the RIAA's arguments in these trials goes toward proving how they are attempting to subtly (and even not so subtly) influence the judges and general public to see things their way. Anyone remember the story called 'Animal Farm'?

* Copyright law (Home Recording Act) fully and absolutely allows for making backup copies of your legally-purchased media. It does not prevent you from time-shifting (TiVo) or space-shifting (CD->CD,CD->MP3). In fact, when I buy a DVD you better believe I make a copy of it!! Peanut Butter and Disney DVD's do not mix well in my home DVD player, and I doubt that Disney will send me a free replacement of a messed up movie. Same for the RIAA and music CD's. By attempting to make DVD's (and recently CD's) copy-protected they are preventing me from exercising my consumer right to make an "archival backup copy of my legally-purchased media". Well, at least they are trying to prevent me from doing that, lol.

* everyone is forgetting about the term "fair use" which negates most, if not all, of the RIAA arguments, using the terms (journalistic review) and (mixing, parody) among others.

This brings us back to the point of having to prove the USE and INTENT of having those song files in the first place. That has not happened in any of the tens of thousands of extortion letters that have been sent out and subsequently paid. How sad.

Posted by: Readers Write | January 2, 2008 7:13 PM

This article is great in that it shines a light on how desperate things have gotten in the music industry. The reason that they are calling the mp3's unauthorized is that the files have been converted from their original format specifically for the purpose of redistribution.

The files on the cd are uncompressed wav or aiff files that are encoded onto the cd to be played on your player. If the defendant had made a straight cd dupe for his own personal use, or even compressed the files to walk around town listening to them on his ipod, it would not even be an issue, but by making the files available in mp3 format in a shared folder, he cooked his own goose.

This is definitely not about fair use. I am not a big fan of the RIAA, but I have no love for bootleggers.

I believe that it is slightly misleading of Mr. Fisher to characterize the songs on his personal computer as being the issue as much as it is about these songs being in a shared folder on a peer-to-peer network.

Posted by: William Hanford Lee Jr | January 2, 2008 9:53 PM

Two thoughts: The article and headline certainly make it look as though the RIAA is going to subpoena the contents of our hard drives looking for mp3's. Which as has been explained above probably isn't true (not yet, anyway). The article should have made it clear that the defendant wouldn't be where he is if he hadn't put the files on Kazaa in a shared folder (intent to distribute otwithstanding).

I agree with Mr. Fisher though, the RIAA IS making an attempt to redefine the issue to their advantage and weaken current laws regarding home copying and fair use.

Until the judges and legislators can be made to understand that this is not an issue of piracy but instead a major shift in market forces and technology we'll continue to see this kind of abusive behavior.

Posted by: clarkl | January 3, 2008 12:56 PM

Ok, one final thought. Regardless of Schwartz' intent in page 15, mp3 copies of legally purchased content cannot be deemed unauthorized. To do so would open a can of worms that RIAA cannot win.

To litigate against "illegally" shared files over p2p, RIAA must go after both the user (Howell) and the provider (eg. Limewire).

To litigate against "illegally" ripped mp3's, RIAA would need to go after both the user (Howell) and the provider (Microsoft, Sony...).

Regardless of intent, I don't believe this is going anywhere.

Posted by: Billy | January 3, 2008 5:17 PM


Why do journalists insist on writing the story they want to write regardless of the facts. You have simply made a bad situation worse by twisting the facts and quoting materials out of context. There are great problems with the music industry business model but mixing up personal use with a law suit involving shared folders does not clarify anything.

You owe your readers and the music industry an apology.

Posted by: Rich | January 3, 2008 7:40 PM

Look, read the RIAA materials on their website. Do they actually SAY that it's definitely OK to copy your CDs to your iPod and your HD, as along as you don't share them? No, they say that's "usually" OK. As Marc points out, they're taking a position in court even stricter than that. The RIAA doesn't want to admit that it's OK for you to copy your own materials. Are they suing for that? No, they're not. But they sure aren't saying that it's automatically OK. Marc's much more right than wrong here.

Posted by: TheManUpstairs | January 4, 2008 1:54 PM

Rich. Why do RIAA lawyers insist on presenting the facts as they suit its agenda, regardless of the facts? They are twisting real issues involving current law into a lobbyist platform with a self serving goal - full control of what we use and how. How dare you accuse anyone of twisting facts - it was Schwartz who decided to mix personal use with alleged piracy and represent facts out of context.

Picture this - "man accused of sharing files"... sadly, this is nothing new. The big story is (and the FACT is) that Schwartz chose the language on page 15. What do you think a good journalist would do? "man might or might not be guilty and there's nothing else to see here". To report anything other than the story here would be to blatantly IGNORE the FACTS.

The RIAA owes apologies to its represented labels (yes, it's labels), artists, falsely accused fans of those artists, tens of thousands of its victims of extortion, the legal system...

You seem intelligent. Read a little more about what's actually happening, and I look forward to your revised, educated analysis.

Posted by: Billy | January 4, 2008 1:54 PM

Remember -- when somebody tells you that a given act is "usually" OK, shouldn't the first question be, "When it is NOT OK?" If the RIAA says it's "usually" OK for me to copy my CDs to my HD and my iPod (which they do -- check the website), that's a huge red flag.

Posted by: TheManUpstairs | January 4, 2008 2:20 PM

Not to follow up on my own post:

To the RIAA apologists and those who are ripping Marc:

Find the the CLEAR and UNEQUIVOAL RIAA statement that it's ALWAYS OK for you to copy a CD to your HD and your iPod as long as you don't share those digital copies or make them available for sharing.

I'll wait.

Posted by: TheManUpstairs | January 4, 2008 2:21 PM

So Mr. Sherman is now "retracting" the sworn testimony of SONY BMG's head of litigation, upon which testimony the jury relied in rendering a $220,000 jury verdict? I wonder if he bothered notifying the judge.

Posted by: Ray Beckerman | January 4, 2008 3:49 PM

Dear TheManUpstairs:

Don't hold your breath.

Best regards,


Posted by: Ray Beckerman | January 4, 2008 5:27 PM

Just wanted to make sure everyone here has links to (1) great debate between Marc and RIAA's Cary Sherman who claimed in the debate that the Howell brief doesn't mean what it says and that SONY BMG's litigation chief "misspoke" at the Jammie Thomas trial, and (2) important article by David Kravetz, who personally covered the Jammie Thomas trial gavel-to-gavel, pointing out that if indeed SONY BMG's chief of litigation "misspoke" at the Jammie Thomas trial (and plaintiffs' counsel "misspoke" during that trial when he brutally crossexamined Ms. Thomas over her failure to ask the record companies for permission to copy her cd's to her hard drive) a grave miscarriage of justice was done in that case:

Posted by: Ray Beckerman | January 6, 2008 8:49 PM

Thanks for the links Ray, I got them from your site recording industry v. the people and appreciate the work you're doing.

I read to the Wash. Post article, listened to the NPR debate, read the WIRED article, and have been studying this topic since this past summer. I oppose the RIAA litigation tactics. On this issue, I come to the following conclusions.

1. The news article is a classic example of a quote taken out of context. A legal brief is meant to be persuasive - not fair, balanced, or otherwise. The brief classifies Howell's .mp3s as "undisputedly unauthorized" and deserves criticism as an overstatement; good editing might have removed the word "undisputed."

In the RIAA's opinion, the .mp3s are "unauthorized" because they are located in a KaZaA shared file folder - a disputed legal position supported by some case law, unsupported by other case law. The brief had been clearly advocating for the position that .mp3s in a shared file folder are "unauthorized" and that case law supports this. By misusing the word "undisputed" all I can see here is aggressive advocacy for a controversial position. I do not see a statement that suggests an intent at this time to establish a novel legal position as suggested by Mr. Fisher's article. Cary Sherman has rightly retracted the comments made by the Sony rep. during the Thomas trial. What effect this has on Thomas' case and award, I don't know.

2. In the NPR debate, Cary Sherman dodged the direct question of whether space-shifting personal use is fair use and whether fair use is a legal right. First, fair use IS ALWAYS examined on a case by case basis and so far, no case could reasonably be brought for an individual merely copying CD's onto their own hard drive and .mp3 player for personal use. Given the Sony case and the provisions of section 107, it's unlikely a case would be brought and even more unlikely it would be successful (in fact, the two go hand in hand.) However, in the late 90's Diamond Rio, maker of one of the first .mp3 players, was sued for facilitating this kind of "space-shifting" personal use. Diamond Rio won the case. Had they lost, we might well see cases against individuals who "space-shift" their personal content. The Diamond Rio case suggests that "space-shifting" for personal use is a RIGHT that limits Copyright. Since it is brought as an "affirmative defense" though, it's role can be confusing. So Cary Sherman was being evasive, to say the least, in not answering the question more directly.

3. Another caller asked about whether sharing with a few friends was illegal. Again, Cary Sherman did not answer directly. The reason is because there is reasonable support for the position that distributing to friends for non-commercial use is not in violation of the Copyright Act. What Cary Sherman did is frame his answer in the context of the RIAA's position, which is that the aggregate effect of friend-to-friend sharing could destroy their business (and therefore be "commercial") and at the same time, possibly be completely legal. Envision a Facebook App that let's you share music with only your actual friends, not millions of strangers...the possibly legality of such an application depends on how one reads the definition of publication in section 101 and a few other sections in the Copyright Act that use the word.

The biggest complaint I have is that much like political candidates on the ropes, the RIAA is going about their problem in a passive-aggressive manner, negatively attacking, rather than finding positive solutions to their problem, which as a Harvard Business School study shows, MAY NOT EVEN BE TRACEABLE TO ILLEGAL DOWNLOADING IN THE FIRST PLACE and just as likely comes from issues described in "The Long Tail," a book focusing on the changing economic society we live in...

draeke @

Posted by: | January 7, 2008 10:24 AM

Draeke, I don't agree with you.

1. It wasn't a motion brief, it was a supplemental brief requested by the judge, calling for the parties positions on some very specific questions. The very specific question and answer to which I and Mr. Fisher were referring are here:
The fact that they said "undisputed" is irrelevant.

2. Yes he was being evasive but he specifically said that the plaintiff's testimony at the Capitol v. Thomas trial was false. Has any retraction been sent to the judge?

3. The biggest problem I have is not that they are evasive but that they are liars.

Posted by: Ray Beckerman | January 8, 2008 2:01 PM

Ray, I see a question that asks if the defendant possessed any "unlawful" copies and I see an answer that says the defendant possessed "undisputed . . . unauthorized" copies. That is the definition of being evasive, i.e., intending to to avoid answering directly. They specifically don't say whether it is "unlawful" or not.

On another blog I posted a comment suggesting the RIAA would not seek to assert the position that transfering CD's to a computer in isolation is actually illegal/unlawful because it would scare people AWAY from CDs. If individuals are afraid of using CDs to put music on their computer, they'll seek out online downloads and just put the downloads onto a CD themselves. They will stop buying CDs (because they can't be put on a computer) and start downloading from iTunes.

The recording industry, if anything, wants people in stores buying CDs not downloading from the internet. That's what these lawsuits are all about - illegal downloads. Not legal downloads; not legal "space-shifting."

The Washington Post rightly retracted the assertion that Atlantic v. Howell was about "space-shifting," in Fisher's parallel article. I don't yet see the correction on this Blog, however...

Posted by: draeke | January 8, 2008 9:13 PM

Don't hold your breath, Draeke. Mr. Fisher was right, and I don't think he'll be issuing any retractions.

Posted by: Ray Beckerman | January 8, 2008 9:19 PM

And I agree Judge Davis should be notified officially of Sherman's correction to testimony.

Despite our differences in opinion here in this particular instance, I want to say that your website of links to litigation documents is not only impressive but a great public service. It's great to know that if there is an official correction made in Capitol v. Thomas, we'll find it there.

Posted by: draeke | January 8, 2008 9:19 PM

The Washington Post is calling its own writer mistaken, I don't need to hold my breath, Ray. However an explanation of what went on behind the scenes at the Washington Post would probably be a great educational experience in mass media/journalism for us all!

I also want to correct a statement I made about Atlantic v. Howell. I said it was about illegal downloading, but that is not entirely true. It is about "illegal" file-sharing through "online distribution" which although seems to necessarily imply a downloader at the other end, the RIAA is suggests it does not. The RIAA suggests that by simply making files available through a shared-folder on a KaZaA or some other peer-to-peer network, the own who makes them available infringes copyright EVEN WITHOUT PROOF OF A CORRESPONDING DOWNLOAD. See Elektra v. Barker in the S.D.N.Y. or Jury Instruction #15 in Capitol v. Thomas.

This is what, in briefer words, the Wash. Post correction states.


BTW for anyone interested, the other blog I referred to is:

Some of the comments have discussed a solution to this problem of ambiguity or lies (depending on your view) by amendment to the Copyright Act to supply a "personal use" exemption that guarantees a right to copy content from one form into another (i.e. CD to computer, computer to iPOD) It's a great idea. Anybody interested in joining that discussion as well is welcome.

Posted by: draeke | January 8, 2008 9:56 PM has a nice article about the Washington Post's incorrect "correction":

(Wired's reporter David Kravetz was physically in Duluth, Minnesota, during the Capitol v. Thomas trial, covered it gavel-to-gavel, and reported on Jennifer Pariser's testimony on the illegality of copying one's own music files, and on the humiliating cross examination of Jammie Thomas over her 'failure' to 'ask permission' from the record companies for making copies of her cd's to her hard drives.)

Posted by: Ray Beckerman | January 9, 2008 11:48 AM

Even better article from Wired proving that Washington Post was wrong to issue its false and misleading "correction":

Posted by: Ray Beckerman | January 10, 2008 10:24 AM

The two Wired articles do nothing to further the discussion. Instead they represent fundamental problems in the discussion. Both the Post article and the Wired articles (among many on the subject) take words out of context to represent more than they do in the context they were first used.

For example, the second, "better" Wired article cites a 2/06 letter from the RIAA as convincing proof of the RIAAs position. Only problem is that it was JOINT submission NOT JUST FROM THE RIAA but from the following organizations:


The submission was meant to discuss a specific issue - whether the Digital Millennium Copyright Act should include exemptions, such as a personal use exemption, to the prohibition on circumvention of copyright protection systems for access control technologies.

The joint response to submissions that supported expanded fair use or a personal use amendment, was that "the inconvenience that faces consumers of works tethered to specific devices is far outweighed by the threat to the enjoyment of copyright posed by illegal digital distribution facing copyright owners."

Yet the Wired uses this JOINT submission about DRM to establish the RIAA position on a different legal issue.

What would actually benefit the discussion is not the tossing back and forth of he-said/she-said rhetoric but an examination of the fundamental premise of the argument that "illegal digital distribution" is a threat. See the Harvard Business School/UNC joint study here:
The study indicates that the RIAA is chasing it's own tail. Speaking of tails, I recommend readers take a look at "The Long Tail" by Wired editor Chris Anderson. It addresses a possible cause of the result seen in the Harvard Business School Study, namely that consumer behavior and consumer expectations have diminished the relevancy of the CD in distributing musical content.

Meanwhile, until the Wired bloggers figure out how to read legal documents, their credibility will continue to decrease.

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