Rip Your CDs; Go to Jail? Or Bankruptcy Court.

by Karoli on December 29, 2007 · 14 comments

The Recording Industry Association of America has one mission: To drive the music industry out of business.  And to their credit, they’re succeeding, especially with their latest campaign targeting college students.  By choosing a group least likely to have the means to mount a defense, the recording industry has been able to throw their weight around with impunity and sometimes with the blessings of the universities they’ve targeted.

The latest furor concerns the ripping of legally-purchased CDs to one’s hard drive.  According to an article in yesterday’s Washington Post, they are now taking aim at something all of us have probably done at one time or another: ripping CDs to the computer in MP3 format:

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.

That’s not exactly right.  Here’s what I can piece together from the court documents online.

  1. Mr. and Mrs. Howell ripped 2000 songs from their legally owned CDs to their computer.
  2. The music was placed into a folder called “My Music”
  3. At some point, Mr. Howell installed Kazaa on his computer. 
  4. After Kazaa was installed, RIAA operatives were able to download  songs from Mr. Howell’s computer to their own, at which point they sued him for copyright infringement.
  5. The court granted RIAA’s motion on the grounds that he had placed the 2000 songs from his personal folder into his Kazaa folder.
  6. Mr. Howell protested and requested reconsideration on the grounds that the ripped CDs had NOT been placed into his Kazaa folder, but remained in his My Music folder.  He further asserts that access was gained to his computer when he was not at home and without his knowledge, and that access included his personal files, even though he had not placed them into the Kazaa folder.
  7. The court granted Howell’s request for reconsideration.  The RIAA filed a supplemental brief arguing the following:

Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. 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.

This argument is at the heart of today’s controversy; specifically, the last two sentences.  Unlike other RIAA assertions, this brief asserts that the mere “conversion to MP3 format” and placement in a “shared folder” is an act of unauthorized distribution.

Howell says that the ripped CDs were never in the Kazaa folder, and the RIAA supplemental brief never specifies that the files were in a Kazaa folder.  It only specifies that they were on his hard drive and could be downloaded via Kazaa.

Evidently the RIAA isn’t familiar with Kazaa’s unique and not-so-unique evils.  Although Sharman Networks, owners of the Kazaa P2P program, say otherwise, my experience and the experience of others is that installation of Kazaa opens the door to malware, back door trojans, and spyware.  Once the back door is opened, anything can happen.  Here’s a recent MIT report of malware prevalence on the  Kazaa network.  Alex Eckelberry of Sunbelt Software has reported on Kazaa malware, too, as well as 2006 reports of exploits which specifically altered and/or duplicated Kazaa directories.

In light of these reports, Mr. Howell’s assertion that he did NOT place his ripped CDs into a Kazaa shared files directory has some credibility.  I hope the court understands that as well.

The real problem here is the way the RIAA supplemental brief defines the copyright violation.  They are saying “once he ripped the CDs and placed them in the folder” he violated copyright, whether or not the folder was actually authorized to be shared publicly.  In fact, Mr. Howell is pretty emphatic about this:  The CDs were ripped to his computer and placed in his My Music folder for his and his wife’s use.

If the RIAA prevails, we are all at risk for copyright violations like this, whether or not we share our files, because they will have broadened the definition of “unauthorized distribution” (that thing the CD says we cannot do) to the ripping and storing of CDs as MP3 files. 

Personally, I’d like to see someone with some balls and some real money push back on the schoolyard bully RIAA.

Here are some other reactions:

Todd Cochrane:

From this day forward I don’t care if you company has DRM-free music or not, you will not get a penny of my money, nor my children’s money, and anyone else I can influence through my podcast and this website.

Steven Hodson wonders if 2008 will be the RIAA’s death knell.  I sure hope so.  Mathew Ingram points out that this argument is an exact reversal of the argument they made before the Supreme Court in the Grokster lawsuit, proving that they are perfectly willing to backtrack to win their pound of flesh from the defendant of the day.  Just for good measure, Robert Scoble says the RIAA is right and Thomas Hawk points out the obvious.

Whatever your opinion, this really IS a backhanded effort to force users to purchase MP3s rather than ripping CDs, and exposes the greed and avarice that runs the record companies. When they claim to represent the interests of the musicians and artists, don’t be fooled, even for a second.  Every time they sue a college student they DAMAGE the interests of the musicians and artists.  As the parent of one who aspires to the music industry, I’d love to throw the first handful of dirt into the RIAA’s grave.  May 2008 be the year it happens.

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  • http://burningbird.net Shelley

    Actually, he admitted that the sound recordings were in his kazaa folder, and that some nefarious and unknown 'third' party must have moved them there. Since he couldn't provide any evidence of a break in or other act of malfeasance, it only becomes his word that he didn't intentionally move these to the kazaa folder. Because the courts have established that having items in a kazaa folder is equivalent to an intent to distribute the items, this was enough to lose him the case.

    “This argument is at the heart of today’s controversy; specifically, the last two sentences. Unlike other RIAA assertions, this brief asserts that the mere “conversion to MP3 format” and placement in a “shared folder” is an act of unauthorized distribution.”

    Shared folder, as in a P2P shared folder. But this was an established precedent from long ago. This isn't new to this case. The court documents reference several cases where an intent to publish and distribute is associated with having files within a P2P shared folder.

    He didn't lose the case because the music was in My Music. He lost the case because the music was in Kazaa.

    It's there in black and white in the legal documents:

    “Howell also objects to liability on grounds that he owns compact discs (“CDs”) containing the disputed sound recordings and that he “translated” them to his computer for personal use. In support of this argument, Howell attached photographs of CDs and cases to his Response. However, the question is not whether Howell owned legitimate copies of some of the sound recordings on CD, but instead whether he distributed copies of the recordings without authorization. Howell's right to use for personal enjoyment copyrighted words on CDs he purchased does not confer a right to distribute those works to others without Plaintiffs' authorization…As he admitted that the sound recordings were “being shared by [his] Kazaa account”, Howell is liable for distributing them in violation of the recording companies' exclusive right. Even if Howell believed that ownership of the CDs conferred a right to distribute their contents freely via Kazaa, that mistaken impression is no defense to liability…Howell's final contention is that a computer malfunction or a third party put his personal files into his shared folder. However, no evidence has been presented in support of this scenario.”

    Common sense dictates that the RIAA is never going to say that any copy is legal. However, they have carefully not said that copying for use in an MP3 is illegal. The RIAA knows that if the organization were ever to push the envelope and attempt to sue people who copy their purchased CDs to their MP3 players they would have Congress, and all MP3 player manufacturers on their case. It's a lose-lose.

    Besides the RIAA does not care about this use of the files. What it cares about is distribution of music through P2P systems.

    Now, purchasing non-RIAA music, only, is an effective solution and more power to the people who do so. But as regards this event, let's argue with the events, not misunderstandings and unchecked facts. To do so weakens, rather than strengthens the argument against the RIAA. Like the boy who called Wolf too many times.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    I'm running out right now and don't have time to do your comment complete justice, but I did want to address the first part where you say:

    “Actually, he admitted that the sound recordings were in his kazaa folder, and that some nefarious and unknown 'third' party must have moved them there. Since he couldn't provide any evidence of a break in or other act of malfeasance, it only becomes his word that he didn't intentionally move these to the kazaa folder.”

    In my post, I linked to a post by Alex Eckelberry at Sunbelt Software about malware installed via Kazaa that altered Windows system files AND created a “Kazaa backup folder”. As far as I can tell, there was no forensic examination of the hard drive in question; in fact, the RIAA argues that a forensic examination could not have been done because the disk had been 'wiped'.

    That statement is simply not true. Last June I discovered Limewire on my son's computer, along with a LOT of malware and opened an email discussion with several forensic experts about whether simply reformatting the drive would be enough, or whether I should use stronger tools to completely clear the drive. They all agreed that reformatting the drive would not preclude them from ascertaining what had been there and that if I wanted to feel completely confident that all traces of malware and its droppings were gone, I should use a much stronger method to clear the drive and begin again.

    From what I'm reading, the RIAA is relying on its Media Sentry program as it's centerpiece to prosecute these folks, and appears to have serious problems. See this link http://recordingindustryvspeople.blogspot.com/2… and related commentary for more information.

    I don't think we can assume Howell is lying.

    But that aside, the way the language in their supplemental brief reads, they have broadened the definition of 'unauthorized distribution' so that any CD that is ripped and placed into a folder that is shared (whether intentionally or not), is now at risk of being an “unauthorized distribution”.

    My iTunes library is shared with my kids. RIAA says (today) that iTunes is a permitted music download site but will they turn around and say the ability for me to share files has somehow caused me to violate the copyright?

  • http://apublicdefender.com Gideon

    Unbelievable.

  • http://burningbird.net Shelley

    Karoli, Howell also made a mistake by wiping his machine, especially in regards to the legal notice stipulating that he was forbidden from doing so because of ongoing litigation. The RIAA provided their proof.

    The burden of proof was then on Howell to bring in a forensic expert to stipulate that malware moved his music tunes to Kazaa. He didn't and couldn't prove it. The court systems work on proof not hypothesis or assertions of confusion or reference to some unknown and nefarious entity.

    This is the law. This is the way law works.

    If there was forensic proof that a malware program moved his music files to the kazaa directory, Howell should have provided this. He did not. If there is proof that Media Sentry is typically in error, he should have provided proof. He didn't. All he did was testify that some unknown person or software moved his files to the kazaa directory. His argument, sans proof or expert testimony, was invalid in the eyes of the court.

    This is the law.

    I didn't once say he was or was not saying the truth. I said this is the way the law works.

    Tell me: what should have the courts done differently?

    “My iTunes library is shared with my kids. RIAA says (today) that iTunes is a permitted music download site but will they turn around and say the ability for me to share files has somehow caused me to violate the copyright?”

    Tell me: is this related to this incident? Is this related in any way to this particular incident?

  • http://paxnortona.notfrisco2.com Joel Sax

    Evidently the RIAA isn’t familiar with Kazaa’s unique and not-so-unique evils.

    Oh, I think they are and they know what they are doing.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    I am not trying to be a smartass here, but isn't the burden of proof on the plaintiff, not the defendant?

    Second, the RIAA's own expert concedes that Kazaa, by default, indexes all files on one's computer and makes them available for sharing without user approval or agreement.

    Third, Howell is representing himself — or was — he may have a lawyer now. We all know the adage about self-representation; I won't repeat it here. I'm sure he is doing so because he could not afford a lawyer, which is what the RIAA hopes for. Therefore, he has a limited knowledge of the law, procedure, and how to approach something like this. Like most of these defendants, settlement is their only option simply because they cannot afford to pay for litigation.

    A read through documents where a lawyer IS involved shows how difficult it is for defendants to even obtain the Media Sentry reports or any of the other documents obtained by the RIAA. See this case for an example: http://recordingindustryvspeople.blogspot.com/2

    With regard to your question about what my iTunes library has to do with this case, here is the answer: If I believe today that I am not breaking the law, but the IRIAA arbitrarily decides that ripping CDs and making them available to my family for sharing is now unauthorized distribution, I and many others will now be subject to the kind of harassment and extortion tactics that Howell and Lindor and others are now victimized by. This is my point: The RIAA is BROADENING their definition of unauthorized duplication. This places people who believed (even under the guidelines published on the RIAA website) they were acting in accordance with their purchased license at risk.

    Back to your first comment for a minute, since I didn't address all your points there for a minute. First, you are quoting from an RIAA document written by RIAA attorneys without seeing the deposition itself. DID he admit the files were placed in a Kazaa folder? Or, along the lines of the expert's testimony regarding Kazaa efaults in the Lindor case, did he install Kazaa and unwittingly place everything in his “My Documents” folder at risk, including all personal correspondence, photos, and other files (like financial data, for example)? (As an aside, there was no evidence that Kazaa had ever been installed on the Lindor computer, yet the RIAA is asserting that Mrs. Lindor did share files via Kazaa, based on MediaSentry reports.)

    If you want to argue that Howell had a fool for a client the day he hired himself to represent his cause against the RIAA, I will agree with you. But I'm unwilling to take the unanswered assertions of the RIAA attorneys as fact without actually seeing the evidence they based those assertions on.

  • http://www.drumsnwhistles.com/ Karoli

    Forgive the typos in the comment above — this little post box does not lend itself to effective editing.

    In the second to last paragraph, ignore the second “for a minute”.

    In the fifth paragraph, it should read “RIAA”, not “IRIAA”.

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  • http://burningbird.net Shelley

    The burden of proof is on the plaintiff, but not the burden of defense. I read all of the court filings for this case, including the ones not posted by anyone, accessed through PACER. The point of RIAAs claim is that these files were made available for public access, which amounts to unlawful distribution according to copyright laws. The issue of whether the copies made available were lawful or not arose from the fact that the original claim by RIAA is that the person both downloaded these files and made them available for further distribution. Howell's defense was pictures of the CD cases for the music. The defense for these being in Kazaa were, first of all they weren't. Then about half way through he reminded the courts he had kids, somehow implying that he wasn't responsible for their actions, and then eventually he came out with some 'agent' or malfunction made these files available for Kazaa.

    In the original court filing, Howell was also warned to not touch his computer or this installation, in very clear non-legal text. He immediately deleted all of Kazaa. Under law, that is enough to provide proof for the RIAA. Howell's response then was, I didn't do anything, I have no money to pay anything.

    The only defense he brought out was a court case that had to do with a manufacturing company, nothing to do with his situation (probably under advice from some idiot on the internet). He basically provided absolutely no proof for his defense.

    Though the courts give great leniency when it comes to a person representing themselves pro se, at some point in time, the defendant has to mount a defense. Howell has not, though from what I can see, the court has bent over backwards to help this person stop shooting himself in the foot. The RIAA is only required to provide proof of their complaint, not provide the defense for Howell.

    The danger with something like this, and this is the second time this has happened, is the person representing themselves pro se introduces broad arguments that force courts into asking questions: were these unauthorized copies. Yes, it was Howell that introduced this question, not the RIAA.

    At that point, it's been the RIAA who has been actually trying to back away from this issue, and focus purely on the distribution angle.

    The Washington Post should have read all of these court papers before writing what they did. To misconstrue this as the RIAA going after Howell just because he ripped the music from the CDs was grossly inaccurate.

    The RIAA has never gone after anyone other than the fire sharing sites. This case is absolutely no different than any other the organization has brought. There is no increased harassment — just a complete disregard to fact checking.

    Frankly, I'm surprised that Kazaa isn't getting the same level of vilification based on this event. What you're saying is that the software put this person at risk of being sued.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    Sharman Networks (Kazaa's parent) has already reached a settlement with the RIAA. After they reached the settlement, the RIAA began to send their settlement offers to the users, at which time Kazaa countersued, saying the RIAA was misusing the software to entrap users. That lawsuit was dismissed.

    I think anyone who used Kazaa, particularly before its specific evils were exploited and revealed, should sue the living hell out of them, though I doubt a lawsuit would have legs. I'm sure they had an airtight Terms of Use agreement that no one bothered to read. I never used it or wanted to use it, but I cleaned up a lot of computers where it had been installed along with its slimy spyware partners.

    I would like to read those court papers, too. I am still troubled by the wording of their supplemental brief, mostly because it follows their expert's testimony in Jammie Thomas' trial about how ripping a CD is “only stealing one copy”. I'm still concerned that there is a broadening of what they intend to go after.

    Going back to what you said in the beginning of this strand, I agree with you that the only way to really steer clear of the RIAA is to purchase, download, and share non-RIAA music. Unfortunately for lots of people out there, it's too late for that, because they did share music, whether by accident or design. I just don't want to find myself sued in five years because I acted in accordance with existing terms of use and shared with others in what I believed to be authorized use, only to discover later that the rules were changed.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    Sharman Networks (Kazaa's parent) has already reached a settlement with the RIAA. After they reached the settlement, the RIAA began to send their settlement offers to the users, at which time Kazaa countersued, saying the RIAA was misusing the software to entrap users. That lawsuit was dismissed.

    I think anyone who used Kazaa, particularly before its specific evils were exploited and revealed, should sue the living hell out of them, though I doubt a lawsuit would have legs. I'm sure they had an airtight Terms of Use agreement that no one bothered to read. I never used it or wanted to use it, but I cleaned up a lot of computers where it had been installed along with its slimy spyware partners.

    I would like to read those court papers, too. I am still troubled by the wording of their supplemental brief, mostly because it follows their expert's testimony in Jammie Thomas' trial about how ripping a CD is “only stealing one copy”. I'm still concerned that there is a broadening of what they intend to go after.

    Going back to what you said in the beginning of this strand, I agree with you that the only way to really steer clear of the RIAA is to purchase, download, and share non-RIAA music. Unfortunately for lots of people out there, it's too late for that, because they did share music, whether by accident or design. I just don't want to find myself sued in five years because I acted in accordance with existing terms of use and shared with others in what I believed to be authorized use, only to discover later that the rules were changed.

  • http://burningbird.net Shelley

    The burden of proof is on the plaintiff, but not the burden of defense. I read all of the court filings for this case, including the ones not posted by anyone, accessed through PACER. The point of RIAAs claim is that these files were made available for public access, which amounts to unlawful distribution according to copyright laws. The issue of whether the copies made available were lawful or not arose from the fact that the original claim by RIAA is that the person both downloaded these files and made them available for further distribution. Howell's defense was pictures of the CD cases for the music. The defense for these being in Kazaa were, first of all they weren't. Then about half way through he reminded the courts he had kids, somehow implying that he wasn't responsible for their actions, and then eventually he came out with some 'agent' or malfunction made these files available for Kazaa.

    In the original court filing, Howell was also warned to not touch his computer or this installation, in very clear non-legal text. He immediately deleted all of Kazaa. Under law, that is enough to provide proof for the RIAA. Howell's response then was, I didn't do anything, I have no money to pay anything.

    The only defense he brought out was a court case that had to do with a manufacturing company, nothing to do with his situation (probably under advice from some idiot on the internet). He basically provided absolutely no proof for his defense.

    Though the courts give great leniency when it comes to a person representing themselves pro se, at some point in time, the defendant has to mount a defense. Howell has not, though from what I can see, the court has bent over backwards to help this person stop shooting himself in the foot. The RIAA is only required to provide proof of their complaint, not provide the defense for Howell.

    The danger with something like this, and this is the second time this has happened, is the person representing themselves pro se introduces broad arguments that force courts into asking questions: were these unauthorized copies. Yes, it was Howell that introduced this question, not the RIAA.

    At that point, it's been the RIAA who has been actually trying to back away from this issue, and focus purely on the distribution angle.

    The Washington Post should have read all of these court papers before writing what they did. To misconstrue this as the RIAA going after Howell just because he ripped the music from the CDs was grossly inaccurate.

    The RIAA has never gone after anyone other than the fire sharing sites. This case is absolutely no different than any other the organization has brought. There is no increased harassment — just a complete disregard to fact checking.

    Frankly, I'm surprised that Kazaa isn't getting the same level of vilification based on this event. What you're saying is that the software put this person at risk of being sued.

  • http://www.drumsnwhistles.com/ Karoli

    Shelley,

    Sharman Networks (Kazaa's parent) has already reached a settlement with the RIAA. After they reached the settlement, the RIAA began to send their settlement offers to the users, at which time Kazaa countersued, saying the RIAA was misusing the software to entrap users. That lawsuit was dismissed.

    I think anyone who used Kazaa, particularly before its specific evils were exploited and revealed, should sue the living hell out of them, though I doubt a lawsuit would have legs. I'm sure they had an airtight Terms of Use agreement that no one bothered to read. I never used it or wanted to use it, but I cleaned up a lot of computers where it had been installed along with its slimy spyware partners.

    I would like to read those court papers, too. I am still troubled by the wording of their supplemental brief, mostly because it follows their expert's testimony in Jammie Thomas' trial about how ripping a CD is “only stealing one copy”. I'm still concerned that there is a broadening of what they intend to go after.

    Going back to what you said in the beginning of this strand, I agree with you that the only way to really steer clear of the RIAA is to purchase, download, and share non-RIAA music. Unfortunately for lots of people out there, it's too late for that, because they did share music, whether by accident or design. I just don't want to find myself sued in five years because I acted in accordance with existing terms of use and shared with others in what I believed to be authorized use, only to discover later that the rules were changed.

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