New Legal Challenge to CD Ripping–One for the Red Herring File
Written by David Sohn
Reports that the music industry is now claiming that it’s illegal to “rip” songs from a CD you own and put them on your hard drive are cropping up all over the Internet. Many of those reports point to a Washington Post article as the source of this news; meanwhile, a posting on Slashdot raised the issue a couple of weeks earlier.
The story feeds quite nicely into the popular perception of the Recording Industry Association of America (RIAA) as overreaching, extreme in its views, and hopelessly out of touch with the realities of the current Internet-based marketplace. And it would indeed be remarkable if the RIAA were to start suing consumers for transferring their lawfully purchased CDs into MP3 format to use on their computers and portable devices. But it’s not happening. The whole story is essentially a red herring.
The truth is, nobody is “going after” any consumer for ripping CDs onto a computer. The alarm stems from a single sentence that appears on page 15 of an RIAA filing in a case focused on peer-to-peer file sharing. The defendant is being sued for allegedly distributing songs to other P2P users by putting the songs in his KaZaA shared folder, not for ripping songs from CDs. The sentence itself may raise questions: “Once Defendant converted Plaintiff’s recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.” But this lone sentence, taken out of context, hardly represents evidence of a new legal position, much less a new front in the RIAA’s legal campaign.
The confusion is an example of how rumors and half-truths can go viral on the Internet, particularly if they provoke outrage and feature themes that fit nicely into already popular conceptions or story lines. One reporter overstates the case, and numerous bloggers quickly spread the word–without looking themselves at the underlying legal documents, which would have quickly shown that there is less here than meets the eye.
But the incident also owes something to the music industry’s failure to take a clear legal position about personal use of legally purchased CDs. I don’t think the music industry has any intention of taking on the established practice of copying music from a CD to a computer or MP3 player. During the Supreme Court oral argument in the Grokster case, the industry’s attorney said that it is “perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, and put it onto your iPod.” The RIAA website says that copying a song from your CD to your computer hard drive or portable music player “won’t usually raise concerns” so long as the copy is for personal use. Yet the industry is generally vague about precisely why such behavior is ok.
For many consumer advocates, the answer is pretty simple: converting and transferring digital music files to new devices or into new formats constitutes “fair use” under copyright law. They would say it’s an extension of the holding in the 1984 Sony Betamax case, which found that consumer “time shifting” of over-the-air TV is fair use. But the music industry isn’t comfortable with acknowledging fair use in any specific context where it hasn’t already been established by a court. So the industry remains vague, preserving its ability to claim that ripping songs from CDs is legal simply because the music rights holders have authorized such behavior. (The RIAA’s website hints at this rationale, describing a scenario in which “[y]ou make an MP3 copy of a song because the CD you bought expressly permits you to do so.”) Of course, that would raise additional questions–couldn’t some music rights holders deny to authorize CD ripping, and do consumers have to diligently check the fine print on each CD before transferring songs to a computer? What if there are multiple rights holders, as is often the case when the songwriter and performer are different?
Clearly, fair use provides a much simpler and more practical legal basis. And ironically, the sentence that started the recent hubbub squares pretty well with the fair use explanation. The sentence talks about whether specific copies are authorized or unauthorized, not whether they are lawful or unlawful. Fair use copies are unauthorized; the whole point of fair use is to permit certain uses without seeking authorization from the rights holder. So saying a copy is unauthorized is not the same as saying it’s illegal. Where making a copy is fair use, the copy can be unauthorized but still fully lawful.