Cry ‘Lawsuit!’ and Let Slip the Dogs of War

From The Online Reporter Edition # 570
Publication Period January 5 through 13, 2008

Cry ‘Lawsuit!’ and Let Slip the Dogs of War
If you’ve always been afraid to download music from a file-sharing site for worry of being caught by a record label and its team of lawyers, fear not. You, too, can be sued even if you’ve never once illegally downloaded music. Well, that’s what we thought too when reading a recent Washington Post story.
It seemed that according to lawyers for the Recording Industry Association of America (RIAA), copying songs from CDs you purchased to your personal computer, even if for just personal use, is just as illegal as downloading them off file-sharing P2P sites or posting them to such sites.
This is only somewhat the case. The confusion stemmed from a lawsuit in Arizona against Jeffery Howell of Scottsdale. Howell is accused of sharing 54 music files in a specific shared directory on his computer that was accessible by users of Kazaa and other P2P software.
That’s the normal look of these lawsuits, but concerns were raised on the fifteenth page of the brief that responded to the judge’s technical questions, where RIAA attorney Ira Schwartz claims Howell is liable for creating any “unauthorized” copies, including ripping these songs from legally purchased CDs.
According to the brief, “It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer….Virtually all of the sound recordings on [Howell’s computer] are in the .mp3 format….Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use.”
The part being left out above and being waxed over by the Post’s story is that, from the brief, “once [the] Defendant converted [the] Plaintiffs’ recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies.” “Shared folder” is the most important part of that sentence, and probably the key idea to the whole lawsuit.
The lawsuit isn’t going to call for damages on every single song that has ever been put on Howell’s computer regardless of its origin. Rather, it is going after files obtained and shared illegally.
Ray Beckerman, a New York lawyer, told the Washington Post, “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.”
The RIAA’s Web site states that “transferring a copy onto your computer hard drive or your portable music player won’t usually raise concerns so long as the copy is made from an authorized original CD that you legitimately own [and] the copy is just for your personal use.” The part “won’t usually raise concerns” seems a bit out of place though. It looks like the industry hasn’t truly made up its mind.
For a little extra perspective, let’s look back to Sony BMG’s lawyer Jennifer Pariser during the Jammie Thomas case, where she said that copying a song from the CD you paid for is “a nice way of saying ‘steals just one copy.’”
William Party, Google’s copyright godsend, sums this whole scenario up quite nicely on his blog, “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.”