Is Fair Use In Peril?

When we awoke on December 30, we found our in-boxes full of emails linking to The Washington Post's "Download Uproar: Record Industry Goes After Personal Use", which reported that the Recording Industry Association of America (RIAA) were charging that Jeffrey and Pamela Howell's transfer of 2000 legally purchased recordings to his computer as MP3 files represented "unauthorized copies" of copyrighted recordings.

The Post story left out that the Howells supposedly belonged to KaZaa and were turned in when a computer technician detected KaZaa software on their machine. Therefore, the suit alleges, they were guilty of the "made available" argument used in prosecuting Jammie Thomas and others.

The Howells maintain they did not "make available" music, that KaZaa's "share" feature was not activated, and that all of the files cited by the suit were from recordings they had purchased and were for personal use. If the RIAA could prove the "making available" case, then that would be that. It seems it has its doubts, however.

In a supplemental brief, RIAA lawyer Ira Schwartz claimed that the Howells' making MP3 copies of purchased CDs was "unauthorized." The RIAA's website says, "If you make unauthorized copies of copyrighted music recordings, you're stealing. You're breaking the law and you could be held legally liable for thousands of dollars in damages."

Does that really mean the owner of a copyrighted recording doesn't have the right to transfer it to another format for personal use? Several paragraphs after the statement above, the RIAA offers "examples of ways you could violate the law," including the following example: "You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it."

Wouldn't that indicate that the crime is making the copyrighted material available, not converting it to MP3, "because the CD you bought expressly allows you to do so"? We've long given up trying to read the RIAA's tea leaves—but this new tack may attempt to prove that the only CDs you can copy for personal use are those that have an end-user legal agreement (EULA) statement expressly granting you that right.

Indeed, further down on that same page of its website, the RIAA contends, "There's no legal 'right' to copy copyrighted material onto a CD-R. However, burning a copy of a CD onto a CD-R, or 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."

Although it burst as "news" on December 29, there have been indications that the RIAA has been headed in this direction for some time. At the triennial review of the Digital Millennium Copyright Act (DMCA), conducted last January by the US Copyright Office, the record labels alleged that, although consumers could make back-up copies without much trouble, such use was "not specifically authorized [by the labels] and should not be mistaken for fair use."

During the Jammie Thomas trial, Jennifer Pariser, head litigator for Sony BMG, said, "When an individual makes a copy of a song for himself, I suppose we can say he stole a song," adding that making personal copies was simply "a nice way of saying 'steals just one copy.'"

So is the Post claim that the RIAA is now targeting personal use hyperbolic or timely? Our guess is both. The trail of evidence goes back at least a year that the RIAA is looking to redefine fair use into an analog right, not a digital one—proving once and for all that it wants its twentieth century business model back. Comic, isn't it, that the "industry watchdog" is pursuing a failed model at the very instant the industry it's supposedly watching out for is finally beginning to embrace a new one?