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The Establishment Press Takes on the RIAA

By William Patry

Today's NY Times and the Sunday Washington Post both had prominent pieces on the RIAA. Here is the link to the Times article, in Adam Liptak's popular sidebar column. Here is a link to the Post's opinion.

The Liptak column details a brief filed by the Attorney General of Oregon to quash a subpoena directed to the University of Oregon to reveal the identity of students engaged in filesharing. The AG is reported to have accused the RIAA "of misleading the judge, violating student privacy laws and engaging in questionable investigative practices." The AG specifically targeted "the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain 'private, confidential information unrelated to copyright infringement.' He added that it may have violated an Oregon criminal law requiring investigators to be licensed." Cary Sherman, President of RIAA, is quoted as saying the industry had seen ?a lot of crazy stuff? filed in response to its lawsuits and subpoenas. ?But coming from the office of an attorney general of a state?? Mr. Sherman asked, incredulous. ?We found it really surprising and disappointing.?

Mr. Liptak is taking the university's side: "No one should shed tears for people who steal music and have to face the consequences. But it is nonetheless heartening to see a university decline to become the industry?s police officer and instead to defend the privacy of its students."

The Washington Post article is about the Howell case in Arizona, well-covered litigation that raises directly whether there is a making available right (or "deemed distribution") as an adjunct of the distribution right. I think not: I think that all copyright owners have the burden of making out a prima facie case that infringement has occurred, and in the case of the distribution right, this means that a copy was actually distributed, not just made available for distribution. The Post however raises a different issue, what it perceives to be a shift in the RIAA's stance in the case. Here's how the article (by staff writer Marc Fisher) begins:

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.
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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.

The article also ties this in to the Thomas case in Minnesota:

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.

These last quotes if accurate (see later posting here) are emblematic of how the rhetoric of theft and counterfeiting are being dangerously used to cover all unlicensed activity, whether it is fair use (in the case of copying for personal use), or any other use content owners don't like. Everyone else's use of a copyrighted work is now deemed by some content owners to be infringing unless they OK it.

One sees this calculated rhetorical shift in many forms, such as industry legislative proposals and comments made by industry executives about them at press conferences, as well as in actual bills, such as the misnamed Pro-IP bill, which is alleged to address counterfeiting, but which contains a grab bag of goodies for RIAA for things like enhanced statutory damages and registration challenges. This new rhetoric of "everything anyone does without our permission is stealing" is well worth noting at every occasion and well worth challenging. It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief.

But despite Ms. Pariser's comments in the Thomas case (again if accurately reported), in the Howell case, the RIAA is being unfairly maligned. I have read the brief (and you can too here). On page 15 of the brief, we find the flashpoint: "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs."

I have capitalized the word "and" because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one's hard drive and is never shared is infringement. This is a huge distinction and is surprising the Post didn't understand it. The brief also goes on to allege in great detail that the copies placed in the shared folder were actually disseminated from Howell's computer, thereby stating a traditional violation of the distribution right, even aside from the making available/deemed distribution theory.

Full post as published by The Patry Copyright Blog on December 31, 2007 (boomark / email).