[I]n 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.
The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.
“I couldn’t believe it when I read that,” says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. “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.”
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The RIAA is currently undergoing an extended experiment to see how far the Federal government will allow them to twist and mangle copyright law.
Well would I have to agree a person should be able to copy the music in a way for their personal private use.
Next thing: RIAA sues people for listening to legally-purchased CDs! Can’t have illegal copies existing in people’s heads.
If making a copy of your music is illegal, I expect soon all cassette tape recorders will be banned and their trading verbotten
If what you say is true, my heart goes to these people that have to pay legal fees so RIAA can have their extended “experimento”. I also hope they abandon their 20th century “commercial” models and embrace iTunes-like 21st century business ideas.
I am surprised (though, maybe I should not have been) that some of you guys of Mises.org are copyfighters. It is kind of cool.
Anyway, I find it frustrating sometimes that many people are not that aware how much threat the RIAA and MPAA and their cronies in the government pose to our civil liberties. They begin by chiseling away our right to free speech and now they are beginning to chisel away our very basic right to our own property. War on Terror and PATRIOT Act be damned, I am far more terrified of DMCA and its future incarnations!
Humorix had an article about the RIAA busting people for ‘music leaks’ i.e. ‘illegally playing copy-writed music at night without a public performance license”. Sure the article was satire and written in 2005,but it does make one wonder.
How did they even know how much music he had saved to his computer? If he had it on his computer for personal use, when was the RIAA allowed access to look at his music files. If the RIAA is using some kind of trjan horse program to send them information about the music files locates on an individuals computer, shouldn’t this be illegal as well?
Next stop: RIAA sues people for mentioning any band or any song in a conversation. Just *mentioning* it, not even saying a lyric.
I wonder just when the federal government will realize that the RIAA (and MPAA) have gone too far.
Come on guys, this is American political law. This is not natural or even common law. IP itself is simply a form of political law. My point is that you can’t use logic to decide this, you use politics, which is influence first and force eventually.
If one were to use logic, then one could argue that the use of a CD player itself is illegal, since it makes a copy from the CD to some internal memory in order to play the music itself. And even worse, those CD players that have skip protection often buffer the entire track in memory, and that would remain there until power was shut off.
One might argue that one does not own CD’s but rather only license them, but I’m not aware that buyers of CD’s ever sign or even acknowledge any such license agreement. Instead, the government decides this issue and changes its mind every so often. They get this right by the constitution which allows for limited time copyrights. I seriously doubt, however, that the original intent was that limited time would mean that nothing produced during my entire life (60 years) has become public domain. Such is the interpretation of limited time.
The bottom line is there is an elephant in the room and if you wish to avoid being trampled, you must take some precautions. I don’t know how this particular defendant was fingered, but he likely did something stupid. Since we are all sheep, we know that the fox can’t get us all, and that is a sufficient form of protection for me. As Harry Browne once wrote about the government traps, one decides for oneself which laws to obey and which to ignore. To each his own.
I do believe that if the RIAA has it’s way. Use of personal computers by the general public for non-business use would be illegal. A good example of their previous behavior was their fight against the DAT format in the late eighties. That format was aimed for the consumer market and because it can make a perfect clone of a CD, the music industry tried to kill it of completely. It goes to show that the RIAA’s priority is their quick big buck at the expense of society’s well being and evolution. Tyrant wannabes I say. But they are killing themselves in the long run. It’s the musicians and consumers that make the music industry. Not the RIAA and other big music corporations. Though I don’t have any facts to back this up, just work of mouth from other musicians and such, the independent music companies have been doing much better then they have been in the 90s. That’s free market capitalism for you. To make money from it, the big companies need to provide products that the people want at a price they are willing to pay. They are not doing a good job with that.
I read through the article, to see if there was some sort of ‘catch’… It seems bizarre and unlikely that someone would face charges for copying the files from a CD that he bought to the hard drive of his own computer. As long as he wasn’t distributing the music files to other people, how can that be illegal?
Is there a catch? Was he doing something other than what I described above? I know that the number of files he copied onto his hard drive is very high, but as long as he bought every CD for each file in question, this shouldn’t be an issue.
I hope that there is a catch of some kind – some special circumstances, which caused this action to be taken. If not, then this is quite scary.
I must ask, how is the government to know what I do and don’t have on my computer. Would be nice if they were defending our borders instead of our “artists.”
This is unreal. Maybe they’re trying to force people to keep their computers offline (and thus undetectable) to prevent file sharing. Or maybe the “music industry” is trying to commit suicide. Whatever copyright law may say, there is always the question of the practicality of the enforcement of that law. They think the lawsuits are going to scare people into not doing this stuff, because there’s simply no way they can go after everybody who does it.
In fact, I wonder if they would say it’s illegal to copy records and tapes to computer, too? After all, they’re musical recordings, just like cd’s are, except that they’re analog instead of digital.
Maybe the RIAA should take a page from the Government of Egypt book. Egypt wants to pass a law to patent the pyramids. Anyone making an exact replica (any scale) would be sued.
Imagine the world without a form of monopolistic government and its IP laws:
Do you really think that in such world a music artist would sell you an unlimited, commercial use of his/her CD for $14.95?
The only reason why music CDs are so relatively inexpensive is due to the fact that their rightful owners sell only their personal, non-commercial use (as you all know, these records are sold with strict limitations for allowed uses… in other words, you are not the full owner of these items by definition of ownership). When a record label buys a recording from a popular artist, they pay much higher price for that same music. In other words, record label companies know the true price of full (unrestricted) ownership of some hot new record.
If IP laws were all of the sudden removed, economically literate artists would start treating every single purchaser of their music CDs as a potential, profit-driven publisher. With such a high demand for the full, unrestricted ownership of these goods, the prices would certainly skyrocket. Those privileged few who would be able to afford the new music would not have any economic incentive to share their music for free. Just like today’s for-profit companies, these individuals would seek the way to make money from their expensive investment. They would sell the playing rights to radio stations and they would seek to contractually limit the ways in which you can use their CDs. All in all, you would have a copyright even in a perfectly free market, because private property rights would allow the owners of expensive music rights to sell you only certain uses of their physical goods (CDs). Such privatized copyright would be enforced more efficiently .
I’d bet that, if we all refrained from purchasing any music CDs or downloads for, say, a month, and made certain that they knew why this was happening,they might reconsider this position. Of course, you’d have to get all the brain-dead teeny boppers to go along with the boycott, which would be quite a challenge.
From what I read, they are not actually suing for ripping CDs:
RIAA not suing over CD ripping, still kinda being jerks about it
“Okay, so we’ve done some digging into the RIAA’s lawsuit against Jeffery Howell, in which the industry is claiming that ripped MP3s are “unauthorized copies,” and it turns out that Jeffery isn’t actually being sued for ripping CDs, like the Washington Post and several other sources have reported, but for plain old illegal downloading. As we’re all unfortunately aware, that’s pretty standard stuff; the big change from previous downloading cases is the RIAA’s newfound aggressiveness in calling MP3s ripped from legally owned CDs “unauthorized copies” — something it’s been doing quietly for a while, but now it looks like the gloves are off. While there’s a pretty good argument for the legality of ripping under the market factor of fair use, it’s never actually been ruled as such by a judge — so paradoxically, the RIAA might be shooting itself in the foot here, because a judge wouldn’t ever rule on it unless they argue that it’s illegal. Looks like someone may end up being too clever for their own good, eh?”
In response to Sasha,
The economically literate artists you speak of that would only sell their music to folks at a significantly inflated price would soon need to use their economic literacy to find other work.
Music as a commodity is like any other in that it is subject to supply and demand. The business model is based on the monopoly and IP laws i.e. the only way to get the new hit song is to buy it from the ones that control it. That was feasible for quite some time as it was expensive and technically daunting to produce and package recorded music that people could use. Not so much any more.
Recording technology has become less expensive and distribution of recordings much easier. I would think it follows that the model for selling recorded music has to change. The rise of Indy labels and independent artists seem to bear this out. The industry is changing. It is no longer necessary to have a centralized “gatekeeper†in charge of deciding who gets to record what, how to market and distribute it, and how much to charge. Before Edison, people would pay money to hear an artist they liked perform their music. We may end up back there in that recordings may very well end up being a means to promote live performances and not the other way around. A set of 8-10 tunes or “album†won’t bring in near as much money in those circumstances for the artist, producers and overhead of a corporation but hey, the more there is, the less it costs.
Full disclosure: I am a professional musician and have been very dissatisfied by the way the business runs since I got screwed on my first record deal back in the 80′s.
billhilly,
I understand your nostalgia for times before Edison (just like I understand the folks who hate automobiles), but times have changed.
While you’re at the topic of economic literacy: you certainly know that the price of full, unrestricted ownership of some CD (including publishing/distribution rights) is much higher than limited use sold to general public. Although it is so cheap to produce music an distribute it online for free in order to make a high demand for your concerts, the most popular bands choose to have it other way around.
Now, if every single person interested in music is now switched to the market for unrestricted ownership of music (they want those currently expensive unrestricted ownership rights), of course that prices of popular CDs would skyrocket.
You also know that every good artist is a monopolist in terms of his own uniqueness. Of course that some young artists would give away their demo CDs for free, just like some musicians perform on the streets at no charge… Nevertheless, profit-driven owners of popular CDs would find a contractual way to earn money from their valued merchandise, even if all IP laws were removed.
So what’s your point, Sasha? Most people don’t want full, unrestricted rights to the music, and would be unlikely to pay that higher price. Of course, the market will find the intersecting point where supply and demand meet to find the price that most people would be willing to pay, and for what rights.
But the real heart of the problem is that changing technology and the new media of digital copies and digital transfers has disrupted the old business models of selling music, and new models need to be developed. Again, the market is the place to find those new models, not IP law.
Michael, my point is:
Full, unrestricted ownership of pop-music recordings is available in markets today and it is very expensive due to the value people place on limited uses of replicated CDs (final goods) as opposed to just going to concerts.
Even if you removed IP laws and government, you would still not be able to legally assume full ownership of CDs without the owner’s consent (and such consent costs a lot of money).
I know that communism is very attractive as an idea, but as long as we have private property rights, people will find a way to contractually restrict those limited uses that are highly demanded in markets.
“New business models” imagined by anti-copyright crowd assume the “right” of individuals to purchase only a limited use of someone’s property (like physical copies of their CDs or books) and then to unlawfully assume full ownership rights of that property – at no cost.
Such “business models” are currently present at some post-communist countries. Once great literature in these regions is now in serious crisis of publishing because of the unfortunate fact that some thief (who assumes full ownership at price of limited use) can leave an author almost penniless by flooding the market with pirate copies.
(1) I despise the “X as a service” model of business. It makes sense to businesses, but to individuals you essentially sell your soul in order to live the life you want. You no longer own your home, car, software, or music. You just borrow it from the maker, or the bank. What good are these things when you’re held hostage by them?
(2) I believe the RIAA/MPAA/BSA are actively bringing about their own apocalypse. By their greed, consumers will get fed up, and newer institutions will take their place.
Sasha, your rhetoric accurately describes the American business mentality. The American people, on the other hand, are beginning to call that mentality backwards and borderline immoral. Please recall that the consumer is always right, and that consumers choose the path of greatest reward for the least resistance.
Real people don’t care what interesting contracts they’ve entered into by purchasing a CD. They follow their gut, and their gut says it’s okay. The American people would sooner throw a Boston CD Party than conform to strict usage contracts.
If you drove your car to work today, and then drove it to California tomorrow, would you be upset if your loan officer calls asking for hefty interstate licensing fees? You would, because you don’t make distinctions based on your car’s use. Attempts to make distinctions between use and formats of media are the same– they only make sense to businesses.
Sasha is correct that even absent government, firms could contractually limit how their goods may be used, i.e. which rights in them they sell. Whether this could, in effect, result in the same thing as current IP is a matter that needs further research.
Will,
I agree that the American mentality is changing and shifting toward the “sovietization.”
If you voluntarily agree to purchase only a limited use of someone else’s property, you are not being “held hostage” to anything. You choose not to spend a fortune by purchasing full ownership rights over a work of art, but on the other hand you get a valuable service for which you pay its market value.
If you take something you didn’t pay for, it’s called theft. Maybe after some “Boston CD party” we will have a system in which you can freely hijack someone else’s exclusive rights. You may even argue that book authors shouldn’t even get a penny from their works to feed their families. Just don’t kid yourself that such system has anything to do with capitalism or private property rights.
One thing that no one seems to have noticed about intellectual property (at least no one that has come to my attention) is the issue of whether or not music, for instance, is really an economic good at all.
In general, economic goods are only those things which are both useful (in the broadest sense) and relatively scarce. Think about the nature of digital media: in essence technological advances have steadily eroded the relative scarcity of certain kinds of goods to the point that they are not really economic goods any longer. If I have a supply of guns or butter and give or trade away some of that supply, then I will be short just that supply of those commodities. If I have a supply of digital music, digital books or other digital media and give away or sell copies of them, then I am manifestly NOT short my supply of them. I can continue to give or trade unlimited copies (of quality equal to the originals) and will never lose my own supply.
The result, of course, should automatically suggest that digital materials are, as a general rule, no longer economic goods.
The further implication of this would seem to be that laws attempting to enforce the economic status of digital media are not only economic nonsense, but tyranical as well.
One of the problems with the RIAA, along with other older entrenched companies, is that their thinking has not kept up with changes in the world. They still wish to compete on the old playing field, and if that seems difficult, they then want the coercive powers of government called in on their side in an effort to coercively restrain change from happening.
They further seem to be thinking of competition in the business sense as limited to win/lose situations. In reality, the only way to truly compete is to provide a product or service that no one else provides; that is, to be creative and to serve customers.
On the more prosaic level, leaving aside theoretical considerations, I know that I myself would prefer to own full quality original CDs, not lossy MP3 versions of the same material. But, since my preference is not easily met, I end up with lossy media for daily use, for two primary reasons: either the material I would like to obtain is not at all available in the original CD format, or it is available only at a price (plus shipping) that I can not afford. The choice for me is thus one between having no music of a particular type, or having it in MP3 format. Neither the musician nor the RIAA has lost anything, because I would not buy at their price in any case, not because I think the price is too high, but simply because I can not afford their price.
Michael, that is the essence of Kinsella’s argument in Against Intellectual Property.
Thank you for that reference. It’s quite an interesting article. Do you (or anyone else) know if Kinsella has ever been able to use his arguments successfully in court?
I doubt it, but you could always ask him.
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