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

by Karoli on December 29, 2007 · 299 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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