January 11th, 2008

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Recently an article in the Washington Post by Marc Fisher said the RIAA claimed users didn't have the right to rip their own CDs. A deluge of net articles and commentary chastised the RIAA for this attack on consumer's rights. The only problem is that isn't exactly what the RIAA said in their court papers. The RIAA and EMI are assailing consumer's rights with their personal music, but the Post cited the wrong legal case.

Here's what the RIAA told the court in the one of the thousands of file sharing lawsuits they have filed, "Once (Howell - the accused file sharer) converted plaintiff's recording into the compressed MP3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiff." From this sentence (and other quotes from the RIAA website) the Post concluded that the RIAA's position was Howell did not have the right to rip a CD into MP3 format and neither would anyone else. Cary Sherman, President of the RIAA went on NPR radio to comment on this issue. "We haven't taken the position that ripping CDs is illegal". He went on to say their complaint against Mr. Howell was that he didn't have the right to rip the CD and place the copy into the shared folder. When asked directly whether a consumer has the right to rip a CD, Mr. Sherman refused to agree, instead stating the ambiguous, "It won't usually raise concern." When pressed further he did say "Music companies have been the most permissive in making clear to the public that copying for personal use is not objectionable." (10:13) To further the case that the Post reporter was incorrect Mr. Sherman said, "With the personal copying issue not a single case has ever been brought, not a single claim has even been brought." (12:40)

This statement is wrong. Record labels are suing for personal copying. The UK based major label EMI has brought a legal case attacking users' rights to do personal copying in EMI v MP3tunes. In this case they have attacked the consumer's right to copy files to a personal, password protected, secure music locker. They aren't putting songs into a 'shared folder' for access by everyone else as in Mr. Howell's case. The songs aren't open for anonymous people to browse, stream or download. The songs are being personally copied into a system where they can only be accessed with the required username and password - the same level of security that online banking services use. It should be noted that most online storage companies such as AOL's Xdrive, Streamload, BT Vault, etc do allow public access but that is not the case with MP3tunes.

While MP3tunes name is on the lawsuit this is an attack on consumer's right to copy their music files to a digital location. Average consumers aren't going to have their own dedicated servers in their own data center. It's too expensive, takes too much knowledge to setup and to much work to maintain. Instead people are going to rely on companies just as they rely on companies to store their photos, email, videos and documents. The labels tactics are clearly an attempt to curtail personal copying. If they can use the courts to prevent companies like MP3tunes from providing services to music owners then they will successfully block people from doing personal copying in the digital age. It sets a dangerous precedent not just for music but all digital property they acquire.

I suspect Mr. Sherman is well aware of our case over personal copying since the attorneys working the case are from law firms used by the RIAA and who used to work directly for the RIAA. But the MP3tunes case refutes his "labels are being reasonable and don't mind personal copying" argument which is why he did not address it during his interview. Personal music lockers are not like Napster, Limewire or any other P2P system. It's not anarchy with millions of files available for all to copy with a couple clicks of a mouse. MP3tunes personal lockers are responsibly implemented with no anonymous access. I am sympathetic to the music industry's plight with music sharing, but I also believe people should be able to listen to their personal music anywhere they desire.

The specific quote from the Howell case was taken out of context and unfairly used to target the RIAA, but the reporters characterizations of the RIAA and labels positions was absolutely accurate. Mr. Fisher should have brought up the EMI v MP3tunes case as an example of the labels attacking personal copying. Here Mr. Sherman cannot side step the issue and say they don't have a problem with personal copying because there's a lawsuit they have filed which says otherwise. I'll keep you updated on the legal developments of this critically important legal battle.

If you've read this far you might be curious about the origins of the grammatically disastrous title. It's old-school net humor you can read about here.

--MR