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RIAA Argues That MP3s From CDs Are Unauthorized

Posted by kdawson on Tue Dec 11, 2007 03:09 AM
from the no-fair dept.
Government The Courts Media Music News
NewYorkCountryLawyer writes "In an Arizona case against a defendant who has no legal representation, Atlantic v. Howell, the RIAA is now arguing — contrary to its lawyers' statements to the United States Supreme Court in 2005 MGM v. Grokster — that the defendant's ripping of personal MP3 copies onto his computer is a copyright infringement. At page 15 of its brief (PDF) it states the following: '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...'"
+ -
story

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Submission: RIAA ups ante, argues MP3's from CD's unauthorized by NewYorkCountryLawyer (912032)
[+] Record Labels Change Minds About Sharing MP3s 243 comments
Mass Defect writes "While the RIAA continues to sue people for p2p file sharing, the record labels have made an about-face and given their blessing to users sharing MP3s via the social networking site imeem.com. In May this year the site was being sued by Warner for allowing users to upload photos, videos, and music to share. However to everyone's amazement, instead of being flattened, imeem.com managed to convince the label that this free promotion was a good thing. In July imeem.com signed a deal with the label. Since then the site has added Sony, BMG, EMI, and now the biggest fish of them all, Universal. Imeem now has the royal flush of record labels supporting its media-sharing service, each getting a cut of the advertising revenues generated by their catalog. Finally someone has figured out a way to do 'YouTube for MP3s' without getting sued out of existence."
[+] Your Rights Online: Investors, "Beware" of Record Companies 301 comments
NewYorkCountryLawyer writes "The Motley Fool investment Web site warns investors to beware of 'Sony, BMG, Warner Music Group, Vivendi Universal, and EMI.' In an article entitled 'We're All Thieves to the RIAA,' a Motley Fool columnist, referring to the RIAA's pronouncement in early December in Atlantic v. Howell, that the copies which Mr. Howell had ripped from his CDs to MP3s in a shared files folder on his computer were 'unauthorized,' writer Alyce Lomax said 'a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value.'"
[+] EFF Takes On RIAA "Making Available" Theory 366 comments
NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."
[+] Arizona Judge Shoots Down RIAA Theories 204 comments
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
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  • Fair use!!! (Score:5, Insightful)

    by BWJones (18351) * on Tuesday December 11 2007, @03:11AM (#21652755) Homepage Journal
    OK, here is the deal... I just bought over $200 worth of music on CD and I absolutely guarantee that this will be the last music purchase I make from any RIAA backed artist unless they start recognizing fair use. In fact, in the MGM vs Grokster case, the RIAA suggested that iPods have a substantial and legitimate commercial use in contrast to Grokster.

    This case appears to be an absolutely clear fair use case. This individual, like hundreds of thousands of others *purchase* music from legal sources and while I just spent the last ten minutes typing out an explanation for why this may be the case, I have realized that we've all heard this ad nauseum. What is it going to take for the shareholders of all these companies to stand up and say enough? What is it going to take before all consumers simply say "enough of this hassle, no more music purchases?" What is it going to take before these people wake up, realize that they need to stop treating their paying customers like criminals? When are they going to realize that rather than litigate against the pirates, they should simply realize that they should compete against them by offering great service for reasonable prices and get rid of all the DRM? There is a reason that music sales are dropping (actually a dozen or so), but if the RIAA and their associated represented companies simply started going back to basics, finding and promoting good talent (there is lots out there) rather than promoting the engineered bands, or what they think should be popular, they could go back to making money. Look, Long Tail economics gives them everything they need to start making more money, even from music in the public domain. Hey, I'd buy music if made available from a huge variety of artists that are currently out of print or have entered the public domain, but are no longer available.

    • Re: (Score:3, Insightful)

      by Typoboy (61087) *
      I'm not sure what you want to see the shareholders do or think, unless it is perhaps "that money is being wasted on lawsuits" which is probably not a foregone conclusion.

      I'd just like to see some alternate distribution mechanisms. The old mp3.com was great, I haven't tried it recently. cdbaby.com feeds into itunes which is great, and seems to be a low barrier to entry as far as physical+online distribution. It's the labels which put money behind promotions in record stores, and presumably, online venues su

      • Re:Fair use!!! (Score:4, Interesting)

        by badasscat (563442) <basscadet75&yahoo,com> on Tuesday December 11 2007, @11:30AM (#21656929) Homepage
        I'm not sure what you want to see the shareholders do or think, unless it is perhaps "that money is being wasted on lawsuits" which is probably not a foregone conclusion.

        I'm sure what he wants them to see is that their accelerating sales declines are because of all this nonsense, not in spite of it. The conventional wisdom right now is that these lawsuits are doing all that can be done to staunch the tide of piracy and prop up sales in a difficult market... I think the reality is the industry is doing more damage to itself with these types of statements and the lawsuits that they go along with than piracy ever did.

        People are calling for a boycott... I think a boycott is already in force, if you look at the sales numbers. A lot of people don't buy nearly as much music as they used to, and the declines are growing every year. (Downloads aren't rising nearly fast enough to make up for lost CD sales.) This despite the lawsuits, and the fact that even the RIAA has said that they've stemmed the rising tide of piracy.

        You can argue over the reasons for that, and I agree there are probably many reasons, but I don't think it can be disputed that the RIAA's war on its own consumers has tarnished the music industry's image among the public. I don't think anybody says "I'm not buying this CD because the music industry is suing people!" but I think it's in the back of their mind all the time that this industry is at best shady and at worst evil, and so major label music is not going to automatically be put at the top of their internal wish lists. Also, it only takes 10% of people to stop buying music for sales to drop 10% (or more, depending on what types of buyers they were), and I'm sure that this campaign against common sense has turned off more than 10% of the industry's heaviest consumers.

        It would be nice if the companies themselves - ie. the investors, which are the money behind everything - would finally recognize this.

            • Re:Fair use!!! Splintered Fiddle Candidates... (Score:4, Insightful)

              by davidsyes (765062) on Tuesday December 11 2007, @12:44PM (#21658451) Homepage Journal
              This is going to be unkind, but...

              Up your ass with a splintered fiddle you riaa bastards and bitches...

              Disks WEAR OUT. You think I'm going to keep replacing player-scratched media? I have finally, for the first time in my life, bought an MP3 player in Nov 07, and I have years worth of CDs I PURCHASED, and some from the net, but I don't have any habit of burning and selling or even giving away to more than 3 people EVER.

              Call it space-shifting if you want, but it helps reduce wear and tear on my computer when I listen to 25 hours of music over the weekend. My CDs are in MY possession, and you're lucky I paid for THOSE, considering they are 5-25 times more expensive than they OUGHT to be. Worse, the MUSICIANS are being screwed (not just because they stupidly signed with a label that screws them in contract but) because you REFUSE to reward them for what they are worth. If I could figure out HOW to directly compensate them, I would, and just bypass your asses.

    • This case appears to be an absolutely clear fair use case

      Sharing MP3s with Kazaa is fair use? That seems rather unlikely.

          • Re:Fair use!!! (Score:5, Informative)

            by bigmouth_strikes (224629) on Tuesday December 11 2007, @08:08AM (#21654311) Journal
            > How are they getting us to think that sharing culture means stealing?
            >
            > Sorry guys, but sharing is not illegal (even if you share using devilish Kazaa).

            Sharing "culture" isn't stealing nor illegal, as long as the copyright owner of said culture is OK with it. Making a copy of music you've purchased - perhaps an audio tape - and giving it to a friend, is not OK with many copyright owners and in that case it is indeed illegal since it would constitute 'copyright infringement'.

            So you're statement that "sharing is not illegal" is incorrect; it depends on the copyright of what is being shared.

    • Re:Fair use!!! (Score:5, Insightful)

      by IBBoard (1128019) on Tuesday December 11 2007, @03:45AM (#21652921) Homepage

      What is it going to take for the shareholders of all these companies to stand up and say enough?

      Erm, maybe when their shares stop making them money? People will invest in all sorts of things and ignore moral/ethical dilemmas, as long as it is making them money. Such is human greed and capitalism.

      What is it going to take before all consumers simply say "enough of this hassle, no more music purchases"?

      That'll only happen when Joe Public who buys the random, mass-produced crap that makes it into the charts feels he is affected. For the moment it is only the comparative minority who rip and share MP3s en-mass who really worry, and those geeks who keep track of the news who can see where it will end up.

      What is it going to take before these people wake up, realize that they need to stop treating their paying customers like criminals?

      Maybe when their business model finally bites the dust and some other group using online distribution without DRM is still going strong. Even then it is only a maybe.

      When are they going to realize that rather than litigate against the pirates, they should simply realize that they should compete against them by offering great service for reasonable prices and get rid of all the DRM?

      Again, it'll cost money to do that. They can sue lots of people for tens of thousands or they can spend millions restructuring and working on a better model. Which one seems better in the corporate world?

    • Re:Fair use!!! (Score:5, Insightful)

      by Thunderbird1 (39829) on Tuesday December 11 2007, @04:00AM (#21652991)
      What we are seeing here is a classic case of the death of an obsolete business model. The RIAA is part of the old guard and the whole reason for their existence is the current business model of selling and distributing music. They are fighting for their very existence. There will always be music and musicians and long may they prosper.

      "The true triumph of reason is that it enables us to get along with those who do not possess it." Voltaire

    • Re:Fair use!!! (Score:5, Insightful)

      by qzjul (944600) on Tuesday December 11 2007, @04:12AM (#21653039)
      Part of the problem is the RIAA thinks that fair use isn't fair. And they're bound to be able to change a few people's minds to their side with the way they throw around money; let's hope they don't change too many (more) politicians minds on that before people stand up as you suggest, because by that point it may simply be too late.

        • Re:Fair use!!! (Score:5, Insightful)

          by prisoner-of-enigma (535770) on Tuesday December 11 2007, @08:16AM (#21654387) Homepage

          But this approach must be counter-productive. Even the fuckwits at the RIAA and their equivalents must be able to see not allowing fair use reduces the value of their CDs and makes them less attractive. That must lead to lower sales and lower profits. This is not a difficult concept.
          No, you're missing their Grand Idea. They want to sell you the CD. They also want to sell you the music in DRM'd pre-ripped format of their choosing. Then they want a cut of the profits from the sale of the portable device (iPod, etc.) you play their DRM'd files on. And so on for every variation in "format" that's possible.

          You see, in their perfect world, they sell you the same content over and over again, each time in a different format. The artist gets a decreasing revenue, the labels get a greater revenue, and the consumer gets screwed. This has been how they've operated since their inception. They're simply trying to take the Old Way Of Doing Business(tm) and force it onto a fundamentally different digitally-connected world.

          The reality is, the labels are the walking dead and they know it. Their sole reason for existence is music distribution. The Internet obsoletes that need. Every executive at every label is desperately trying to stave off the inevitable destruction of their business model just long enough for them to retire or shift the problem to someone else. When anyone, anywhere can effectively distribute their work -- be it books, songs, videos, or something else -- globally with minimal costs, the need for any kind of "distributor" is removed. The labels know this, but they're going to pretend not to know just as long as they can.

    • labeling? (Score:5, Insightful)

      by m2943 (1140797) on Tuesday December 11 2007, @04:43AM (#21653187)
      How can you tell whether music is from an artist represented by the RIAA?

      Maybe we should ask for a labeling requirement on all music (CD, on-line, radio) indicating whether the music comes from an RIAA artist or not.

    • Prisoner's dilemma? (Score:5, Insightful)

      by Moraelin (679338) on Tuesday December 11 2007, @05:42AM (#21653419) Journal
      Well, what you propose is IMHO no different than the prisoner's dilemma, only scaled to some millions of people. And it just doesn't scale.

      The mechanics are just like in the prisoner's dilemma, really. With two people it's just "am I sure that my pal will do the same? or am I shooting myself in the foot?" Which boils down to how well you know him, I guess. There have been plenty of people who've been surprised there. With millions of people, it becomes "am I sure that all these millions will do the same? or am I just the idiot depriving himself of something, while everyone else doesn't give a damn?" Since you don't know them all, the latter becomes the far safer bet. And you know they'll think the same.

      Briefly, if your rights depend on some tens of millions of other people doing the same thing, you've already lost them. Isolated individuals are insecure, weak, vulnerable, easy prey for FUD, etc.

      No, what most of the world discovered a long time ago, is that you need some laws if you're against something.

      E.g., if you want, say, the factories to stop polluting rivers, you need a law that forbids that or at least gives them a cost feedback for it. Because just hoping that everyone will suddenly say "well, I'll refuse to work for anyone who pollutes, or buy their products" just doesn't work.

      Same here. If you don't like copyright law and the loopholes/privileges/whatever it gives to the RIAA, then have that law changed. Just hoping that millions of independent people will individually decide to boycott them, never worked, never will.

      Or at the very least, get organized. If you want people to stand up for something, at personal cost or inconvenience, see the prisoner's dilemma again: they have to be sure that everyone else, or at least enough others, do the same thing. Plus, it gets you taken more seriously by the other side you're negotiating with. A group of a million or two sworn to never buy CDs until fair use is respected, has some bargaining power. Isolated individuals whining separately do not.

      The last paragraph is why unions appeared. Much as that seems to be a swearword for many nerds.

      Or before them such things as the guilds or medieval communes. Isolated burghers were no match for the noble of the land. A whole city standing together for their rights, well, now that got taken a bit more seriously.

    • RTFA!!! - Re:Fair use!!! (Score:5, Informative)

      by scooter.higher (874622) on Tuesday December 11 2007, @07:02AM (#21653861) Journal
      The Fair Use argument was negated when he shared them on KaZaA - RTFA, and look at page 15 that is even mentioned in the summary.

      But let me point out what I believe ruins the Fair Use argument (IANAL):

          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.
          Each of the 11 sound recordings on Exhibit A to Plaintiffs' Complaint were stored in the .mp3 format in the shared folder on Defendant's computer hard drive, and each of these eleven files were actually disseminated from Defendant's computer.
        • That's hilarious - "It's a travesty! I propose a boycott! Well, unless it means me having to do without whatever I want, in the way I want it, then it's okay."

          Are you serious?

          • Re:You're *just now* starting to boycott??? (Score:5, Insightful)

            by init100 (915886) on Tuesday December 11 2007, @05:10AM (#21653279)

            Some people are addicted to their music, and can't live without their occasional fix. Thus, they'll buy music from the RIAA regardless of how much they hate them. To such people, getting a fix is much more important than making a point about the RIAA.

            • no one is asking you to stop buying music - just no via the RIAA.

              I buy pretty much everything direct now - from ultra obscure stuff like Richard Skeltons wonderful work: http://www.sustain-release.co.uk/ [sustain-release.co.uk] to mainstreamish things like Neubauten and (drum roll) Radiohead.

              More bands should get with the program and opt out of the RIAA as well.

              There is Music out there - the RIAA is not interested in music and it is not interested in its customers/victims

              • Re:You're *just now* starting to boycott??? (Score:5, Informative)

                by Enry (630) <enry AT wayga DOT net> on Tuesday December 11 2007, @07:44AM (#21654145) Journal
                Don't forget Magnatune [magnatune.com]. Large selection of music, very inexpensive, plenty of download formats, and 50% of what you pay goes directly to the artist.

              • Re:You're *just now* starting to boycott??? (Score:4, Insightful)

                by xero314 (722674) on Tuesday December 11 2007, @12:35PM (#21658269)

                ...mainstreamish things like Neubauten.
                I'm not sure what mainstreamish means but I'm guessing that if the band is not available in the local outlet malls then it's not mainstream. In other words Neubauten is not mainstreamish. But what is even worse is you miss conception that purchases of Neubauten recordings does not support the RIAA. Neubauten is signed to Mute Records which is a wholly owned subsidiary of EMI with is one of the largest suppliers of funds to the RIAA (Though this has dropped recently it has certainly not dropped to nothing). Even if you purchased a recording directly from members of the band without a single dime of it going to the bands record label (which is probably a violation of their contract) you are still supporting the label by supporting their bands.

                I love the idea of the boycott as a means of consumer control, but trying to boycott the Big Four is just short of saying that you will no longer be listening to music, record or otherwise (and this is coming from some one with an extensive collections of independent unsigned musics and a promoter of such musicians).

            • Some people are addicted to their music, and can't live without their occasional fix.
              Some people are addicted to their RIAA label branded music, can't live without their occasional fix, and are too narrow minded to learn of alternatives from independent artists.

              Fixed that for you.....

              I thought I was the only one who, since the Internet made finding independent artists easier, actually enjoyed finding such hidden gems of music. After discovering indie bands, I learned it was cool to listen to something that most others don't know about. There are plenty of people at work that ask me who I'm listening to at any given time. By now, they can guess it's an "indie" artist. Most say it sounds good. I do my best to let them know where to find such music in their favorite genre.

              Although a couple long time favorite artists of mine are published only on RIAA labels, I generally gave up on everything but independents. At the risk of a mild superiority complex, I feel great knowing I'm not an RIAA music buying drone.

        • Re:You're *just now* starting to boycott??? (Score:5, Interesting)

          by unapersson (38207) on Tuesday December 11 2007, @05:33AM (#21653373) Homepage
          You can always buy your mainstream music second hand. I'm pretty sure that pisses them off a lot more than piracy. It's being sold legally yet they don't get a penny and they'd ban it if they could.

          • ...buy your mainstream music second hand... It's being sold legally yet they don't get a penny and they'd ban it if they could.
            It's probably second on their list next to the removal of fair use. Fortunately for them (and unfortunately for everyone else), DRM serves both of those purposes. Aside from restricting what you personally can do with it, DRM'd music also can't be resold.

            It's a neat little racket they've got going, and just a few of the many reasons the industry wants to abandon the CD.

            This is an issue that deserves some thought. Fair use isn't the only pro-consumer doctrine that can be routed around by some combination of legislation and technology (I'm looking at you, DVD Forum).

          • Re:You're *just now* starting to boycott??? (Score:4, Interesting)

            by PopeRatzo (965947) * on Tuesday December 11 2007, @06:15AM (#21653615) Homepage Journal

            You can always buy your mainstream music second hand.
            Now you're talking. Next to buying directly from the artist, this is my favorite approach to the issue of all out-of-control corporate entities like RIAA.

            But I also believe downloading via torrent trackers is also very effective. The attacks of the RIAA against consumers has gone beyond the polite and has moved into a new arena requiring civil disobedience. The main thing is to deprive the record labels of your money, which they seem to believe is "their money" by divine right of kings.

      • Re:Fair use!!! (Score:5, Informative)

        by NewYorkCountryLawyer (912032) * on Tuesday December 11 2007, @10:13AM (#21655623) Homepage Journal

        it seems like the RIAA isn't actually claiming that the fact that he ripped them makes them unauthorized, but the fact that they're in his "shared" folder makes them unauthorized.
        Don't you think the RIAA lawyers are clever enough to have said that, if that's what they intended to say? The judge asked them if the copies on the computer were unauthorized copies. They said yes. He wasn't asking whether what was done with the copies was unauthorized. He was asking whether the making of the copies was unauthorized. (The reason he was asking that was that the Hotaling case has been distinguished on the ground that the copies allegedly being distributed were admittedly illegal copies. UNLIKE the copies in this case, which were all authorized copies.).

  • Learn how to summarise (Score:5, Informative)

    by bigHairyDog (686475) on Tuesday December 11 2007, @03:15AM (#21652771)

    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.

    In other words, they're complaining about sharing the MP3s, not making them. The fight against corporate copyright bullies will not be helped by intellectual dishonesty and exaggeration.

    • Fair enough... (Score:5, Insightful)

      by SanityInAnarchy (655584) <ninja@slaphack.com> on Tuesday December 11 2007, @03:26AM (#21652823) Journal
      Except that they are claiming that mp3s outside your shared folder are yours, but they are no longer authorized copies once they enter your shared folder?

      That's a step beyond claiming that "making available" is piracy, which is a step beyond what most of us accept as piracy.

      I do agree with your assessment, though. Nothing is helped by intellectual dishonesty and exaggeration.

    • Re:Learn how to summarise (Score:5, Interesting)

      by Typoboy (61087) * on Tuesday December 11 2007, @03:28AM (#21652835) Homepage
      There is an 'and' there. But, line 3 of that page says: "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs' copyrighted sound recordings on his computer." and then states that that refers to copies which were made from their original format. So it does seem that they are claiming that possession of mp3s of CDs you own is unauthorized. Unless (and it is a big if) they are saying that possession of mp3s in his shared folder is an unauthorized format. But I can't quite follow that. Page 8 says that space shifting fair use is invalid when it involves distribution to the public. Presumably it could be fair use otherwise?

    • Re: (Score:3, Interesting)

      by angle_slam (623817)
      The term "Moreover" suggests that the second statement (not allowed to distribute) is completely separate from the first statement (MP3s are not "authorized copies distributed by Plaintiff").

    • Re:Learn how to summarise (Score:5, Informative)

      by Jumperalex (185007) on Tuesday December 11 2007, @04:11AM (#21653035)
      That is not how I read it and I believe you are being fooled by their deliberate word play. Lets break it down:

      "they [the mp3s] are no longer the authorized copies distributed by Plaintiffs"

      Don't be fooled by the usage of distributed here. They are not talking about the defendant distributing yet ... that is why the last word is Plaintiffs not Defendants. They are only talking about the copies which he possesses, that happen to be in his shared folder, and claiming that those copies are no longer authorized copies provided by the Plaintiff. In short the only copies authorized are therefore the ones on the CD, and not the ones converted into the compressed .mp3 format.

      Now looking at the SECOND part they say:

      "Moreover, Defendant had no authorization to distribute Plaintiffs' copyrighted recordings from his KaZaA shared folder."

      The key here is first the usage of "Moreover" which is additive as in, 'A'=bad AND 'B'=bad. Not, as you assert, 'A' + 'B' = bad but 'A'bad.

      The trick here, IMO is that they crafted this very specifically so as to introduce the idea that the mere production of mp3s is the production of an unauthorized copy. Distribution is also unauthorized. Notice how they didn't say distribution of THOSE mp3s was unauthorized. That is implied from their larger statement that he wasn't allowed to distribute copyrighted recordings regardless of the "authenticity" of the recording. So they have set up two arguments which I will reorder to make it clearer that they are separate:

      1) The defendant isn't authorized to distribute copyrighted recordings
      2) The defendant was in possession of unauthorized copies of those copyrighted recordings which are unauthorized by the mere fact that they are compressed mp3 copies; regardless of the fact that he owned the CD those copies were generated from.

      The end result of this being, the only authorized way to procure and possess "compressed mp3s" would be for them to be distributed by the Plaintiff. That is the implication of the words "they are no longer the authorized copies distributed by Plaintiffs." Because if you buy into that statement it begs the question: how do you get an authorized compressed mp3 version of their copyrighted works.

  • unauthorized != illegal (Score:5, Informative)

    by Per Abrahamsen (1397) on Tuesday December 11 2007, @03:18AM (#21652785) Homepage
    They almost certainly were unauthorized. But that doesn't matter, as copyright law does grant you some limited rights to make copies without authorization.

    In most jurisdictions these rights would include transferring cd's to mp3's for personal use.

  • Something I ran into yesterday on boingboing (Score:3, Interesting)

    by mrjb (547783) on Tuesday December 11 2007, @03:21AM (#21652807)
    Clearly the RIAA is scared shitless about new media. Sites such as thesixtyone [thesixtyone.com] give hope though.

  • Enforce it to the letter (Score:5, Interesting)

    by deniable (76198) on Tuesday December 11 2007, @03:21AM (#21652811)
    Mr RIAA lawyer better not have any audio files on his laptop. Better have the judge make sure he has a note from every rights holder. Check his car too. Got an iPod, Mr. Lawyer? How about your kids? Unauthorized ring-tones on your phone?

    Let he who is without sin cast the first stone. I'm sure we could find violations by the RIAA and it's members and staff.

    Can't touch this? It's discovery time.

  • That's not what it says (Score:5, Informative)

    by harlows_monkeys (106428) on Tuesday December 11 2007, @03:31AM (#21652857) Homepage
    Actually, if you read the document, I think you'll see that it says making MP3s and putting them in the shared folder is unauthorized. It doesn't say it would be unauthorized to make MP3s and put them in a non-shared folder.

      • Re:That's not what it says (Score:5, Informative)

        by EvanED (569694) <evaned&gmail,com> on Tuesday December 11 2007, @04:24AM (#21653097)
        If they were talking about sharing with random people on the Internet they would have a valid point.

        Gee, I wonder if that was what they were doing:

        Exhibit B to Plaintiffs' Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant's computer on January 30, 2006. ... 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.

        Each of the 11 sound recordings on Exhibit A to Plaintiffs' Complaint were stored in the .mp3 format in the shared folder on Defendant's computer hard drive, and each of these eleven files were actually disseminated from Defendant's computer. ... In addition, Defendant unlawfully distributed all 54 of Plaintiffs' Sound Recordings by making unauthorized copies of the recordings available to other KaZaA users for download.


        Just because /. says it's true doesn't make it so... and this is just another instance of the submitter being either stupid, careless, or actively dishonest. The "shared folder" was Kazaa.

  • Intentional posting of misleading headlines (Score:5, Informative)

    by Anonymous Coward on Tuesday December 11 2007, @03:37AM (#21652883)
    Just to get people to respond and say how stupid and misleading the article is ... is getting quite old. But heck it works and people come back for more every day spitting out the same tired responses again and again and again. It really makes me feel good about wanting to continue reading and posting tired articles/responses on slashdot. Keep up the *fine* work guys.

    The RIAAs problem is they made ripped copies *avaliable* via a shared folder. It does not say the act of ripping is illegal.

    What I did find interesting was the description of MP3 as a perfect copy. Niquist aside MP3 is a lossy format. Songs in MP3 format are most certainly not a perfect copy of the origional work but they don't degrade unless re-encoded which I think was the real point they were trying to make.

  • MP3s and the Audio Home Recording Act (Score:4, Interesting)

    by Anonymous Coward on Tuesday December 11 2007, @03:40AM (#21652899)
    The Audio Home Recording Act [wikipedia.org] was a reaction by the RIAA to the dangers of Digital Audio Tape (DAT). Basically, the RIAA was worried that DAT would lead to widespread bit-perfect copies of its recordings. In order to prevent that, the RIAA agreed to the use of the Serial Content Management System [wikipedia.org] to regulate DAT. What SCMS did was but in a flag that allowed one to make a bit-perfect copy of a recording. But one could not make a bit-perfect copy of the copy. (You could, of course, convert the copy to analog and make a perfect copy of the converted track.)

    Obviously, DAT never took off and SCMS became a dead end. However, look at what the RIAA agreed to: you can make as many imperfect copies (for personal use) as you wanted. What is an MP3 except an imperfect digital copy?

    Unfortunately, this almost certainly has no relevance to the MP3 debate because SCMS is specific to DAT. (If it did have relevance, I'm sure someone would have argued it by now.)

  • up next (Score:5, Insightful)

    by TRRosen (720617) on Tuesday December 11 2007, @04:25AM (#21653099)
    "once the plaintiff stored the CD's in a unlocked cabinet they were no longer authorized copies"...

    Makes you wonder why they haven't gone after libraries for "making available" yet...

  • Sue Apple (Score:4, Interesting)

    by iamacat (583406) on Tuesday December 11 2007, @04:29AM (#21653129)
    I just popped a CD into my drive and iTunes asked me if I want to add it to my music library. Upon clicking yes, the application created mp3 files on my hard drive and shared them with all my coworkers without warning me about making unauthorized copies. I hear that's also the main source of music in most people's iPods. So why not sue Apple rather than going after the small fish?

    Ah... you mean Steve Jobs will make a 15 minute reality distortion field speech to the jury and the lawsuit will be over? And one more thing - the precedent will be set that not only format shifting music or anything is fair use but also so is streaming the files to your family or your coworkers. We certainly wouldn't want THAT.

  • kdawson strikes again (Score:5, Insightful)

    by Ungulate (146381) on Tuesday December 11 2007, @04:30AM (#21653135)
    Yet another misleading kdawson post. I haven't had the urge to filter by editor since the JonKatz days, but I think I'm about there again.

  • Molehill to Mountain Alert (Score:5, Informative)

    by Stanislav_J (947290) on Tuesday December 11 2007, @04:32AM (#21653141)

    Unless I can no longer read and correctly understand and interpret English, this is not anything to get excited over. (But most of y'all will, cos otherwise Slashdot would be no fun at all, right?) That one sentence, in context, links the ripping to mp3 format and the "making available" in a shared folder as being one "unauthorized" process. Yes, I would say the sentence is poorly worded and potentially ambiguous, but the intent is clear. If he had ripped the tracks for his own use, and not made them available to others, no one would know or care, and there would be no case here.

    Leave it to the denizens of this board, however, to twist bad syntax into something sinister. You would think that we are suddenly in danger of having the mp3 format declared illegal and ripping software impounded. There are plenty of reasons to despise the RIAA, and they are a sufficiently evil organization as it is -- we don't need to paint them as even more of an asshat than they already are.

  • Clear cut case (Score:5, Insightful)

    by TheThiefMaster (992038) on Tuesday December 11 2007, @04:35AM (#21653159)
    FTPDF (From The PDF):

    First, Defendant actually distributed the 11 sound recordings listed on Exhibit A to Plaintiffs' Complaint from the KaZaA shared folder on his computer to Plaintiffs' investigator, MediaSentry.

    Finally, Defendant acknowledges that he saw evidence of other KaZaA users downloading files from the shared folder on his computer.
    Seems pretty clear cut to me. He shared the files in his KaZaA share, and they downloaded some and busted him for it. He even seems to have admitted it.

    Though I don't like this:

    Second, because online "piracy typically takes place behind closed doors and beyond the watchful eyes of a copyright holder," Warner Bros. Records, Inc. v. Payne, Case No. W-06-CA-051, slip opinion at 7 (W.D. Texas July 17, 2006) (Exhibit B hereto), Plaintiffs should be allowed to prove actual distribution based on circumstantial evidence.
    Proof based on circumstantial evidence!?

  • RIAA - If you stop feeding them they'll go away (Score:5, Insightful)

    by lusid1 (759898) on Tuesday December 11 2007, @04:39AM (#21653173)
    I don't think I can make this any simpler: Stop Buying Music from RIAA Members. Its easy, they don't seem to want you to buy their product anyway. Music CDs might or might not play, just like they might or might not infect your PC with rootkits. Legal downloads might or might not play on whatever portable device you have, and they probably wont play on your next one, or your next PC, so what are you spending your money on anyway? Stop Buying Music from RIAA Members.

    The RIAA gets its funding from the big labels in addition to these racketeering activities. As SCO has so thoroughly demonstrated, suing your customers is not a sustainable business plan. Cut off the other source of revenue: Music Sales, and they will eventually wither away and die. I am not condoning piracy here, and as a musician its hard to advocate intentionally killing off an industry I've spent a significant part of my life studying, but it simply must be done. It is the only way to rid the planet of what has become a blight on the world. Only then can something better rise up to fill the void. It is a sacrifice we all have to make for the greater good.

    Theres a theme here: Stop Buying Music from RIAA Members.

  • Misdirection by the lawyer (and you all bought it) (Score:5, Insightful)

    by karlandtanya (601084) on Tuesday December 11 2007, @06:18AM (#21653635)
    RIAA's lawyer is arguing that the following constitute unauthorized copying:

    1. Defendant copies files (the copying).
    2. Defendant put the files in a shared folder on his HDD.
    3. 2. invalidates his fair-use right to 1.

    Note that this argument does NOT require that he actually distributed any of the songs, or even connect to another computer.

    You get rulings on this sort of stuff with a defendant that does NOT have a lawyer, then cite the precedent for those who do.

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