A View From The Handbasket

Thursday, February 16, 2006
All your songs are belong to us
Posted by neros_fiddle at 9:58 AM

Today's lazy-ass post returns to a previous theme -- the RIAA as frightened animal lashing out at anything that moves, including its own customers.

Any sane observer would have to conclude that the rise of portable digital music players is an opportunity for the music industry. As people buy iPods and Rios and MP3-capable cell phones and other such gadgets my the metric ton, the content for them has to come from somewhere. Sure, some of it will be from illegal downloads, but legal downloads and ripping from CD will clearly be a substantial part of the pie. An intelligent promotion strategy, combined with quality product and reasonable pricing, should create demand for CDs as source material for portable digital music players.

Unless, of course, the RIAA were to decide that ripping CDs was illegal, further alienating music enthusiasts and driving them to illegal downloads out of frustration and enmity. Which, naturally, is exactly what they've done.

The real kicker is buried in a footnote, where the joint reply suggests the unthinkable: that making copies of CDs for any purpose may, in fact, be infringement.

Nor does the fact that permission to make a copy in particular circumstances is often or even "routinely" granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.

Allow me to translate: just because people have been copying CDs in the past doesn't mean that they had the authorization to do so, and a general trend does not override such explicit authorization. But as the EFF has picked up, the RIAA is engaging in a little historical revision. Their last comment about the Grokster case is attempting to change the substance of comments that were uttered by their own legal counsel. Why they would do this is abundantly clear when you see the statement in question:

"The record companies, my clients, have said, for some time now, and it's been on their website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod."

It looks like someone is having a change of heart.

Here's the money quote from the RIAA:

The [submitted arguments in favor of granting exemptions to the DMCA] provide no arguments or legal authority that making back up copies of CDs is a noninfringing use. In addition, the submissions provide no evidence that access controls are currently preventing them from making back up copies of CDs or that they are likely to do so in the future. Myriad online downloading services are available and offer varying types of digital rights management alternatives. For example, the Apple FairPlay technology allows users to make a limited number of copies for personal use. Presumably, consumers concerned with the ability to make back up copies would choose to purchase music from a service that allowed such copying. Even if CDs do become damaged, replacements are readily available at affordable prices. Similar to the motion picture industry, the recording industry has faced, in online piracy, a direct attack on its ability to enjoy its copyrights.

Translation: You want to play a song on an iPod, you'd better buy it from iTunes, even if you already own (or are contemplating owning) the CD. Your kid trash a CD? Tough luck, buy another one. They're cheap.

I hate to keep bringing this up, because I hate being reminded of how much I've spent on music over the last 25 years, but I have probably 90+GB of music on my computer (and a subset of that on my iPod) that I've ripped from perfectly legal CDs (and LPs!). I've legally downloaded a handful of tracks. Do I feel any need whatsoever to purchase additional (inferior quality) copies of that 90+GB of ripped content? Of course not.

Of course, it's all theoretical at this stage, because standard CDs are and forever will be easily rippable. But all these pronouncements from the RIAA are in the context of a regular review of the DMCA. Therefore, the RIAA is laying the groundwork for legally inhibiting all copying of music in the future via laws and Frankenstein DRM schemes (even if such rules will be practically unenforceable, and the technology doomed to defeat).

In its rabid, fevered brain, the RIAA seems to think their content is in such demand that people will think that "iPod ripping is not fair use" makes some sort of logical sense and, more importantly, is a sound business strategy. It needs to hurry up and die its inevitable death, so we can all be spared these embarrassing death throes and get on to a fair music distribution system for the Internet era.

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