On 12/30/07, Louis Proyect <[EMAIL PROTECTED]>
> DOWNLOAD UPROAR: RECORD INDUSTRY
> GOES AFTER PERSONAL USE
>
> By Marc Fisher
> Washington Post Staff Writer
> Sunday, December 30, 2007; M05
>
> [ see original posting for full article ]
Unless one defines "personal use" to include distributing one's
(putatively) "personal" copies to others while also making them available
to still others via peer-to-peer or comparable distribution/publication
networks, both the headline above and the text of the quoted article are
seriously misleading . . . just like most of the perfervid discussion of
these issues in most Internet blogging and newsgroups.
> "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 . . .
> argues in a brief . . . that the MP3 files Howell
> made on his computer from legally bought CDs are
> 'unauthorized copies' of copyrighted recordings."
What he actually argued was that once the defendant and like acting others
make and convert copies of music to ".mp3" format, the preferred mode for
peer-to-peer transmission, and place them into shared directories on their
computers (that is, again: make them available for peer-to-peer
redistribution) , those sorts of copies no longer are "authorized" because
. . . guess what? . . . they no longer are "personal" (or solely
"archival") copies in the copyright law "fair use" sense of that term.
> " * * * 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.'"
In the first of these statements attributed to the RIAA, the music industry
trade association conflates its propagandistic and moralistic use of
"stealing" with "infringement" and so in this sense materially exaggerates;
but the balance of that sentence is little more than a tautology (since,
obviously, an unauthorized copy is an unauthorized copy and those the RIAA
represents do not authorize copies they sell to be distributed and made
available for distribution to others in the manner at issue in these lawsuits).
(The second statement above attributed to the RIAA is also an in terrorem
exaggeration -- except, of course, that the above "could be" presumes an
actual criminal prosecution based on clear allegation coupled with proof
beyond a reasonable doubt of specific intent to violate the Copyright Act.)
> "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."
In argument in the U.S. supreme court during the Grokster/Napster
litigations case and in various of its publications, the RIAA's
representatives have acknowledged that they will not make a copyright
infringement claim against much less actually sue a legitimate purchaser of
a music CD or of music stored in other media who makes one copy of the copy
purchased for personal library/archival purposes.
Granted, this is a concession effectively necessitated by the reality that,
besides being a seriously self-destructive marketing/P.R. disaster, it
would be impossible to prosecute copyright infringement lawsuits against
every person who lawfully purchased a copy of a work of music and who then
made such an additional copy. Albeit, too, courts have long indicated
(though arguably they have not actually clearly/explicitly held) that they
would consider this to be "fair use" which thus insulates this (but only
this) kind of copying from infringement liability.
But this also is a way for the RIAA and those it represents to signal that
they will treat an actually "personal" such back-up/archival copy as if an
"authorized" one.
Unless, however, (as some have attempted to argue) one claims that, as
distinguished from it being mere data, digitally stored information on a
music CD is a "computer program" -- re. which the Copyright Act explicitly
legitimizes the "legal owner" make one copy solely for "archival purposes"
(also providing, however, that such a copy is destroyed or transferred with
the original once the original is sold or given away provided in an itself
non-infringing manner) -- if one reads literally what "exclusive [sic]
rights in copyright works" the Copyright Act has long vested in the
copyright owner* and, which, correspondingly, that law makes redressable by
an infringement lawsuit, the making of a copy of a copyright protected work
even if by someone who lawfully obtained that copy has long been an act of
infringement _especially_ if/when coupled with the additional conduct
(i.e.,in effect and also directly republishing/redistributing) the RIAA
sues about in the lawsuits referred to.
-----------------------------------------
* I.e., "the the exclusive rights to do and to authorize
any of the following:
1) to reproduce the copyrighted work in copies or
phonorecords;
2) to prepare derivative works based upon the
copyrighted work;
3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other transfer
of ownership, or by rental, lease, or lending;
4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures
and other audiovisual works, to perform the copyrighted
work publicly;
5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the
copyrighted work publicly; and
6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission."
17 U.S. Code ยง 106
