Monday, December 31, 2007

The Establishment Press Takes on the RIAA

Today's NY Times and the Sunday Washington Post both had prominent pieces on the RIAA. Here is the link to the Times article, in Adam Litak's popular sidebar column. Here is a link to the Post's opinion.

The Liptak column details a brief filed by the Attorney General of Oregon to quash a subpoena directed to the University of Oregon to reveal the identity of students engaged in filesharing. The AG is reported to have accused the RIAA "of misleading the judge, violating student privacy laws and engaging in questionable investigative practices." The AG specifically targeted "the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain 'private, confidential information unrelated to copyright infringement.' He added that it may have violated an Oregon criminal law requiring investigators to be licensed." Cary Sherman, President of RIAA, is quoted as saying the industry had seen “a lot of crazy stuff” filed in response to its lawsuits and subpoenas. “But coming from the office of an attorney general of a state?” Mr. Sherman asked, incredulous. “We found it really surprising and disappointing.”

Mr. Liptak is taking the university's side: "No one should shed tears for people who steal music and have to face the consequences. But it is nonetheless heartening to see a university decline to become the industry’s police officer and instead to defend the privacy of its students."

The Washington Post article is about the Howell case in Arizona, well-covered litigation that raises directly whether there is a making available right (or "deemed distribution") as an adjunct of the distribution right. I think not: I think that all copyright owners have the burden of making out a prima facie case that infringement has occurred, and in the case of the distribution right, this means that a copy was actually distributed, not just made available for distribution. The Post however raises a different issue, what it perceives to be a shift in the RIAA's stance in the case. Here's how the article (by staff writer Marc Fisher) begins:

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing. Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle. Now, in 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 RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed.

The article also ties this in to the Thomas case in Minnesota:

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

These last quotes are emblematic of how the rhetoric of theft and counterfeiting are being dangerously used to cover all unauthorized activity, whether it is fair use (in the case of copying for personal use), or anything else content owners don't want. Every act with a copyrighted is now deemed by content owners to be infringing unless they get paid or OK it.

One sees this calculated rhetorical shift in many forms, such as the industry legislative proposals and comments made by industry executives about them at press conferences, and in actual bills, such as the misnamed Pro-IP bill, which is alleged to address counterfeiting, but which contains a grab bag of goodies for RIAA for things like enhanced statutory damages and registration challenges. This new rhetoric of "everything anyone does without our permission is stealing" is well worth noting at every occasion and well worth challenging. It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief.

But despite Ms. Pariser's comments in the Thomas case (if accurately reported), in the Howell case, the RIAA is being unfairly maligned. I have read the brief (and you can too here). On page 15 of the brief, we find the flashpoint: "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs."

I have capitalized the word "and" because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one's hard drive and is never shared is infringement. This is a huge distinction and is surprising the Post didn't understand it. The brief also goes on to allege in great detail that the copies placed in the shared folder were actually disseminated from Howell's computer, thereby stating a traditional violation of the distribution right, even aside from the making available/deemed distribution theory. Its a good thing that the Post's motto is not "All the News That's Fit to Print."

49 comments:

Colette said...

Thanks for the great post. I read the Washington Post article yesterday and thought the same thing about the personal use copy issue in Howell. The brief talks about a combination of copying to his computer + placing in the shared folder, making it "unauthorized".

In the Howell case, though, I'm wondering if the volitional act doctrine will help the defendant at all. I suppose his voluntary act of placing the mp3 (that is, the 1s and 0s) in his shared folder is enough to say he's "made them available" for distribution to (or reproduction by) third parties, but is that enough to say he's directly violated section 106(3)? Doesn't the process of file sharing require someone else to come in and initiate the "share"/"download"/"distribution" process and then wouldn't that third party's volitional act be necessary to actually complete the direct infringement (setting aside secondary liability concerns). I'm curious if a file that's placed in a shared folder but never shared can really a "distribution" under 106(3) (to me, it's just a "making available" and like you, I think "making available" or "deemed distribution" are not direct violations of 106(3)).

such sweet thunder said...

"The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed."

The Post may be overreaching more than a little on the above comment, as well.

I'm not sure what "collapsed business model" the author is referring to: the sale of CDs, the sale of digital downloads, etc.?

Sure, there has been an overall decline in sales, but is anyone really ready to say that these models have collapsed. That's quite a revolutionary stance that, at least in my opinion, doesn't hold much water. . . at least not yet.

William Patry said...

Collette; I too think it is a nice question of whether there is a distribution when someone comes in and takes a file from your hard drive; its a bit like the repartee between Louise Lasser and Woody Allen in Bananas:

Maybe I just can't give.
- Why don't you receive? I'll give.

- I'm not ready to receive.
- Then you give and l'll receive.

-- I can't receive...

-- I'm a person who can only receive if another is giving.

- I can't give. I'm sorry.
- If we each receive, it might work.

-- I can't. My trouble is I'm receiving and I'm not able to give or receive.

- I would give if you could receive.
- I don't know how I can help you.

- If we both receive or both give...
- I can't receive and I can't give.

It's not going to work out.
It's no use, Fielding. I'm sorry.



Such Sweet Thunder; yes, I think David Byrne's article presents a far more complete picture, although if by business model the Post is referring to cramming albums down consumers' throats, there is ample reason for agreeing on that score.

Anonymous said...

Two stray thoughts: All of these "making available" claims based on shared folders assume that the computer user actually took the step of "placing" the files in question into a shared folder. Would you consider it an adequate defense if the the user were able to show that they had no idea that the files resided in a shared folder? This has been the situation alleged by a number of targets who claim that they simply installed a software that grabbed all the files for its own purposes - - sort of like the defaults in iTunes. :-)

Why is it that the RIAA seemingly targets universities and not large corporations where employees spend their days downloading on high speed connections? I have heard of some corporations that block large downloads, P2P sites, iTunes and other sites but I haven't heard lately of many corporations getting C&D letters from the RIAA and I have heard of none that contested such letters when received. The equivalent here would be a demand for a list of all of the employees having on their segmented portion of the company hard drive any copies of music owned by the RIAA companies.

Anonymous said...

To such sweet thunder.

If you don't think the music business in the United States as practiced by the majors has collapsed, then you are not in that business. Just like the housing sector, it will return. But not until there is a lot more pain.

Anonymous said...

While I'm interested in seeing the "making available/distribution" argument ruled upon, it seems like it shouldn't be a defining issue either way.

Seems to me making a copyrighted song available for free download to thousands of others is contributory infringement, regardless of whether it's direct infringement.

William Patry said...

I too think there are traditional grounds on which to come to a decision in the case.

eric said...

The RIAA is not singling out the act of copying AND placing into the "shared" folder. According to the Post article, their lawyer called the mere act of making a personal copy is stealing.

"The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that 'when an individual makes a copy of a song for himself, I suppose we can say he stole a song.' Copying a song you bought is 'a nice way of saying "steals just one copy," ' she said."

Unless the Post is quoting the trial transcript out of context, this seems to be what the RIAA is asserting: Merely copying a CD you purchased to your computer for personal use is "stealing one copy."

Earlier in the Post article, they write, "The industry's own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it 'won't usually raise concerns,' as long as you don't give away the music or lend it to anyone."

In other words, they don't concede that it is legal.

William Patry said...

Eric, you have to read the brief in the Howell case to see what the RIAA is pleading in that case; you can't rely on what the Post says, and while I criticized what was said in the Thomas case (if that's what was said), it seems likely that even those remarks were not relevant to what was pled there either.

This doesn't mean I don't think it should be clear copying for personal use should be permitted; I do, and think it is under existing law.

Copycense said...

(Boy, we always come late to the good parties.)

We noted this in a Clippings entry about two weeks ago (of course, after reading the actual brief). This issue first gained a foothold across the "blogosphere," and as best we could determine, the theory that RIAA was arguing against personal copies first was articulated by Ray Beckerman, who represents clients whom the RIAA has sued and runs the RIAA vs. The People Web site.

We have dealt with Mr. Beckerman before and he has seemed to be a straight shooter. I recognized, though, that he is involved in ongoing litigation. That is reason alone to check any of his assertions for possible bias.

I concluded there was no reason to think Mr. Beckerman biased in this situation. I just disagreed with his interpretation of what the brief said. (Again, this is assuming this thought originated with Mr. Beckerman, which may or may not be the case.)

When I read the brief, I kept seeking the punch line. Instead, I thought RIAA was seeking to solidify a "making available" type of argument. In any event, I didn't agree that the quoted passage equated to a music industry assertion that ripping from CD to MP3 is, de facto, a Section 501 infringement. RIAA may think that, but I don't see support for that thought in its Howell brief.

As you've noted in this post, there is a rhetorical shift among us that is equating any unlicensed, uncompensated use with infringement. This is consistent with a view of "copyright as control" that has been codified into law through legislation like the DMCA.

Equally important, though, is the editorial shift on copyright that has been occurring in the mainstream press since (we estimate) 2004. Slowly, but surely, the NY Times, Washington Post, and Wall Street Journal have begun rethinking their traditional copyright coverage, which often has amounted to little more than regurgitated press releases for the content industries.

The problem is that none of the mainstream publications have reporters knowledgeable enough about copyright to give the topic consistently strong, balanced coverage. (I gather this is what led, in part, to the confusion over the alleged RIAA position in the Howell brief.)

Further, there have not been enough knowledgeable, non-partisan voices frequently speaking to the press on copyright so that reasonable, knowledgeable positions are published. Instead, those who get quoted are those who have a vested interested in a control-heavy presentation of copyright.

Therefore, Fritz Attaway gets quoted frequently; as does Cary Sherman; as does (to a lesser extent) Pat Schroeder. Together, these voices provide a extremist copyright cacophony that still reigns supreme in the mainstream press (despite the recent tilt in coverage). Even when an alternative viewpoint is presented -- Northeastern law professor Wendy Seltzer debated MPAA's Fritz Attaway in June 2006 -- the article's dominant frame still tilts toward the protectionist paradigm of copyright.

Although Congress may not rely on the popular press to make policy decisions, I'd be surprised if members totally ignore the constant din of "piracy" and "control" that has been part of copyright coverage in the news for several years.

Given copyright's importance to the everyday citizen, we'd like to see more of a press presence from people like you who can espouse a clear, balanced point of view.

Crosbie Fitch said...

Soon, when the distinction between shared/not-shared becomes fully blurred, we'll no doubt start seeing "Possession with intent to supply" as an infringement.

The only option then will either be for everyone to immediately divest themselves of all such contraband, or to abolish copyright...

Ray Beckerman said...

I find it hard to imagine that Marc Fisher of the Washington Post did not ask the RIAA to comment.

I find it hard to imagine that if the RIAA's $375-an-hour lawyers wanted to say that it was the sharing, not the copying and compression from the Cd's that was unauthorized, they were incapable of articulating that thought?

I find it hard to imagine that the judge, who was asking the RIAA to respond to the question of whether the copies themselves had been unauthorized, in an obvious reference to the Hotaling case, was using the term "unauthorized" in a sense that was different than the sense in which the Hotaling court used it.

If the RIAA's position was that it was the sharing, not the copying from a cd into an mp3, that was the problem, (a) why did it not say so, and (b) why did it add the language "Virtually all of the sound recordings... are in the ".mp3" format for his and his wife's use... Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format and..."?

Chris said...

Bad facts make bad law. Unfortunately, Kazaa's (and other p2p networks's) reputation colors the "making available equals distribution" argument.

Here's an alternate hypo: X's music collection is stored in a shared folder on his laptop. This is used for, say, his media player. But, when X travels, he unwittingly leaves the files shared, accidentally making them available to others.

Now, Kazaa and BitTorrent have a much better search and indexing facility than does windows file sharing. But, it seems strange that liability hinges on the quality of the search function.

William Patry said...

Ray, all of the hard to imagines don't matter: what matters is what the pleadings say and what actual bases are presented to the trier of fact. That said, I had thought the issue of copying music for personal use had been put to rest in 1992 in the AHRA (and may have been for analog) but that statute's tying of royalties for the blank media to copying may get in the way of the intended result.

rumpole said...

I found these stories particularly odd given the industry's representations at the Supreme Court in Grokster, where counsel for the plaintiffs expressly state the exact opposite. (See pp. 11-12). Having now seen the brief, that explains how the two positions can be reconciled.

Mason said...

To me, the interesting question is not whether making a "backup" or "personal" copy of one's CD to one's computer is illegal, for that is surely fair use. The interesting question is whether the RIAA can prove unauthorized *copying* under 17 USC 106A (as opposed to *distribution*) using the theory that defendants' later act of sharing a folder containing such previously made copies retroactively makes the creation of such copies a violation of the copying right (especially if the copies were originally made with no intention of later sharing them).

William Patry said...

Rumpole (of the Bailey): right, reading the brief is why I did the posting.

Shelley said...

Thank you for your reasoned response. I'm actually surprised at the number of people who have taken the Post's article as fact. I'm, frankly, more surprised at Ray Beckermen's arguments. He continues in your comments. One has to ask: what does the cost of a lawyer have to do with the law?

The problem with the Post article and subsequent debate is that people are basing it purely on the brief in support of the summary judgment. You have to go further back in the court documents to get some idea of where the four questions from the judge arose, leading to the wording in the brief, which seems to have kicked off so much debate.

I wouldn't necessarily expect commenters to do this, but I would have expected the Post to do so. And then to have checked with the paper's own legal staff, as well as copyright experts, for advice on interpreting the text.

Regardless, your statement in comments said it all:

"Ray, all of the hard to imagines don't matter: what matters is what the pleadings say and what actual bases are presented to the trier of fact."

Magorn said...

Sir,

I hate to quibble with as eminent a copyright attorney such as yourself, but as an attorney myslef I do not read the industry breif anywhere near the same way you do.

The choice of which file folder on his computer a person chooses to store a copy in, is legally irrelevant to whether he had a right to make the copy in the first place. Therefore, if the RIAA has any case at all here its must be that the act of copying itself was unlawful, not where the copies are stored.

William Patry said...

Magorn, I am always happy to be challenged, and even happier to be proved wrong, because I have then learned something I didn't know (or properly) before, But in this case, I think I am correct: the question is simply what are the acts the RIAA asserts constitute infringement. I think the brief is quite clear in saying copying + putting the copy in a folder for shared distribution. If it was just copying, I would feel differently, but the case would be different too. If you read the whole brief it is devoted extensively to distribution: that's the focus of the case. I think the Post article is way off base.

Anonymous said...

Bill, I, too, have read the brief. I hope your construction of the "AND they are in the sharef folder" is correct. Unfortunately, as Mr. Beckerman says, there is an awful lot of emphasis on page 15 of the brief on the mp3 format and on the making of the copy. That is a recipe (intentional?) for bad law. It will be too easy for a judge's opinion to de-emphasize the "shared folder" part and to emphasize the copying. Suddenly, you will have dictum masquerading as precedent, to be cited again and again.

FWIW, and as an aside, I can't help but wonder if there is a judicial estoppel argument based on Don Verrilli's statement in the Grokster argument. “The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod.” "Perfectly lawful" does not sound like "our member companies [and every other record company on earth] has granted you implicit authority, revocable at will"

Svette said...

Well, all the discussion seems to be just so much speculation as to what the RIAA "really" means. We already know that the RIAA takes a broad view of copyright so I'm going to go with Beckerman's rationale in that the RIAA has not in any way clarified their position to say that CD ripping is legal and thus is being deliberately obtuse on this issue.

The fact that the mp3's were in an allegedly shared folder does not magically turn the mp3's from "authorized" to "no longer authorized." While copies made from those mp3 rip files as a result of their being "shared" may not be authorized the original mp3 rips are still fair use copies. Any other issue is a separate issue which does not affect the legality of the rips themselves, but the RIAA claims otherwise.

I believe that you, Mr. Patry, have overlooked the apparent retroactive "de authorization" aspect to the RIAA's claim--i.e. that, 1, they "authorize" mp3 rips and, 2, have the power to deauthorize those rips depending on which folder they reside in on your computer.

While the sharing of the files may not be authorized the original rips in custody of the owner of the CD's remain legal as rips regardless as to whether they may also be unauthorized for some other use--which is a wholly separate issue which has no bering on whether the rips are legal. They are not licensed subject to retroactive withdrawal of the license at the whim and caprice of the RIAA.

Anonymous said...

Bill, doesn't the argument that copying + shared folder = infringement, if correct, render mostly academic the debate over whether making available is infringing distribution (at least in the P2P context)? By definition, copying + shared folder = making available. If so, does that change your view, or has the RIAA succeeded in finding a clever way to avoid the "making available" debate? Bruce

The Curmudgeon said...

Something that I think is being missed here, but that I also think bears looking into, is what changes are made in the registry on a Windows-based computer.

Microsoft makes a registry setting for default folders as thus:

{drive}:\Documents and Settings\{user}\My Documents\

This folder houses other folders, all of which the systems uses as a default location for files of specific types. For instance:

{drive}:\Documents and Settings\{user}\My Documents\My Music

is the default folder for digital music files, and is where files of that sort are saved unless the user changes the folder prior to saving the file.

However, some times when you install an application, it creates its own deault folder for particluar file types, and updates the Windows registry. Thereafter, the new file folder becomes the default save location.

If KaZaA does this, and that is how defendant Howell's (the Arizona guy) MP3s ended up in the KaZaA folder, then the defendant did NOT actively place the MP3s in that folder, the application did so by default.

Something to think about...

Woadan

YFTL said...

Maybe someone can answer this for me: If A is authorized to obtain a copyrighted work X, would obtaining X from person B who does not have the right to distribute X be an unauthorized distribution by B?

That is, Media Sentry presumably was given license to go and download music from people on file sharing networks. The people copying the songs to their shared folders presumably didn't have the right to distribute. So, does Media Sentry's authorized downloading constitute illegal distribution by the copiers?

I don't think that it's merely an academic question since it's right in the first sections of the RIAA's supplemental brief.

William Patry said...

YFTL, since Media Sentry was authorized by the labels, I don;t see the point. The larger point, I think, is not the CD ripping as infringement by itself (which I think is not infringement anyway), but rather the making available argument, and its possible acceptance by courts.

Anonymous said...

As the Grokster Chinese menu (though still unanimous) opinion notes, contributory infringement requires some level of actual intent. Direct infringement, as an intentional tort, essentially does not. Placing a lawful copy of a lawfully acquired copyrighted work in a shared folder is either by itself a direct infringement or a contributory infringement in conjunction with the act of an outsider using a P2P application. If it is the latter, then tying a contributory infringement to an act (ripping) that would be a direct infringement, is a clever trick to spread confusion over whether the actual conduct of using the shared folder requires an intent to contribute to the infringement by the third party, or not.

How stand you Prof. Patry? Your earlier post in this section was somewhat Delphic:" I too think there are traditional grounds on which to come to a decision in the case."

Of course, you can remain neutral and it's your house to do as you will. But you did suggest that the RIAA wasn't over-reaching here, and that's a hazardous position to defend. I am certain that RIAA lawyers read this blog. Maybe one such could clarify everything for us?

William Patry said...

Dear last Anonymous, I didn't mean to hide the ball. BTW, here is a link to CNN which has an over three minute segment on the issue in which they are scratching their heads about the ripping claim: http://www.cnn.com/video/#/video/showbiz/2008/01/02/lklv.hostin.music.chetry.cnn

I would comment on the CNN video that there is excellent legislative history permitting the sharing of copies among friends, both in 1972 and in the AHRA. I think CNN gave up too much.

Now on to Anon's question to me. I think: (1) making a copy for your own use is fair use no matter what acts occur afterwards; (2) there is no making available right; (3) because there is no making available right there cannot be contributory infringement of a non-right; (4) there must be a volitional act to infringe; (5) to infringe the distribution right there must be an actual, volitional distribution by defendant of a copy.

Ray Beckerman said...

Well, Prof. Patry, since you said this:

"I think: (1) making a copy for your own use is fair use no matter what acts occur afterwards; (2) there is no making available right; (3) because there is no making available right there cannot be contributory infringement of a non-right; (4) there must be a volitional act to infringe; (5) to infringe the distribution right there must be an actual, volitional distribution by defendant of a copy."

I forgive you.

:)

William Patry said...

.....
.....
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Anonymous said...

From last Annon. You are a stand-up guy to take a position. But I remain a bit confused by your answer. Would you consider a shared folder to be a contributory act towards the unlawful copying by a third party reaching the shared folder through a P2P application? And/or would you consider a shared folder a part of the direct infringing conduct of unauthorized distribution?

William Patry said...

Anon, blessedly, I don't feel the obligation to have a position on every issue in copyright; there are some issues I think need to be stewed over, or at least I need to stew them over. I have been re-evaluating my position on fair use regularly for 23 years and expect to keep doing so.

One of the things that I think needs to be sorted out is what does it mean to distribute: if, as I think distribution requires the volitional act of providing a copy of a work, then for P2P one would have to prove that defendant "sent" as compared to someone coming in and "taking" the copy. One counter argument is the analogy to putting a book on a table with the expectation that someone else will come along and "take it." That's a good analogy to me.

On top of that is the problem you note: contributory infringement of the reproduction right.

To me, there are a few steps: (1) what is the current law, divorced from what I would like the law to be and (2) what would I like the law to be. I always try to keep these two separate.

Anonymous said...

"Making available" is an extremely interesting concept.
Let's say I build a web page consisting of a list of 100 magazines and I tell you for $200 per year, you can make unlimited copies (photocopies, scans, etc)of the 100 magazines on the list, but you may not copy the entire magazine from cover to cover. You can use the copies in your business but you may not distribute copies outside of your business. The copying is for internal use only. I tell you that I will send a portion of the $200 to the publishers of the magazines. I tell you that the publishers have told me that I can do this. I do not send any money to freelance contributors to the magazine even though I known that certain photos, drawings and articles were produced by freelancers and not staff employees of the magazine.

I do not provide the magazines. You get the magazines from news stands, libraries, flea markets or subscription. You make your own copies.

Am I am committing contributory or vicarious infringement as to the works of authorship produced by the freelancers?
All comments are welcomed.

William Patry said...

An easy solution, used by many plaintiffs is simply to sue for breach of contract.

YFTL said...

Prof. Patry said:
YFTL, since Media Sentry was authorized by the labels, I don;t see the point.

But that's exactly the point. If MS was authorized to get the music, does it matter WHERE they get the music from? Put another way, is it an unauthorized distribution to give the copy to someone authorized to get the music in the first place?

This goes to the infringements that the RIAA alleges result from the distribution to MS.

Anonymous said...

Professor Patry wrote:
"An easy solution, used by many plaintiffs is simply to sue for breach of contract.

9:13 PM"

Are you saying that the plaintiff's have a breach of contract action against the publishers? Why not me for running a website where I am encouraging infringement and making money doing it?

Your thoughts will be appreciated.

William Patry said...

YFTL, re your point: "is it an unauthorized distribution to give the copy to someone authorized to get the music in the first place?"

MS could hardly have been the only party who received copies from the shared file. But in another context, say an importation case, if a book publisher authorized X to order a copy of a book from Y, and that was the sole act alleged, I would understand the argument better.

tekel said...

I'm late to the party (Patry party?) too, but I wanted to call more attention to the Oregon suit. Since I'm in law school at the U of O, and since my Ducks handed a CRUSHING defeat to those poor sods from Southern Florida just three days ago, I thought you guys might be interested in a little gossip from the copyright battle that's between SF and Seattle:

http://tekel.wordpress.com/2007/12/31/just-like-verizon/

Short story is that I heard that neither the Oregon AG nor the school had any choice about this, the AG had to take the case. And if Cary Sherman is right that this is exactly like the Verizon subpoenas, then the UO is going to win.

Anne said...

William, I too was flabbergasted that the distinction between "putting it in the shared folder" and letting the copy reside in some non-shared place was not more clearly delineated in much of the mainstream press - but in reviewing this in both the popular press and the blog arena, it seems pretty clear that many people simply *don't get* that distinction - one that seems so obvious to us as lawyers seems to simply elude people - perhaps because the copying user has full control over both, and to the end user the distinction of 'where you put a file' seems trivial. They don't seem able to make the leap that it shows intent.

But Marc Fisher is no clueless end user, he's a journalist, who *should* be able to get that distinction.

That said, I heard him on NPR today, with Cary Sherman (president of the RIAA), and it was *very* clear that Marc Fisher had a point to make, and he wasn't going to let something so inconvenient as the facts get in the way of that point.

In any event, Cary Sherman clearly stated in the NPR interview that the RIAA was not interested in people who make copies of their music for *personal use*. He would not come out and say that it was 'legal' (and rightly so, that is not his place to say), but he was very clear that making copies for discrete, personal use is ok, and it was very much the "shared folder" distinction on which the present case turns.

Kind regards,

Anne

Anne P. Mitchell, Esq.
CEO/President
Institute for Spam and Internet Public Policy
Professor of Law, Lincoln Law School of SJ

Anne said...

Anonymous - it's been a while since I looked into this, but I believe that a required element for vicarious or contributory infringement is that the third party stood to profit from the infringement, and knew or should have known that they so stood. It was, in fact, that aspect of infringement upon which we predicated the McCain amendment to CAN-SPAM (which we helped to co-author), which is, granted, a very different context, but the standard and model for liability by third-parties in the spam-sending context is the same.

Now, you could argue that you did not in fact profit from the actual act of infringement - you simply created a list of magazines, and it was from the creation of that list that you profited. However, your customers are paying you *for the 'privilege' of making the infringing copy* - but for their belief - created in them by you - that they could copy the magazines, they would not do so, and so, I believe, there is a colorable case for vicarious (and indeed contributory) infringement.

But that said, I'm not a copyright lawyer.

Kind regards,

Anne

Anne P. Mitchell, Esq.
CEO/President
Institute for Spam and Internet Public Policy
Professor of Law, Lincoln Law School of SJ

William Patry said...

Thanks, Anne I will try to catch up on the interview. I have known Cary for 25 years: he is an extremely smart, careful person

YFTL said...

Maybe I missed something, but a good portion of the supplemental brief is dedicated to the "actual, unauthorized distribution" to MS. The RIAA pretty clearly argues that exact point on page 12 of the supplemental brief:

"As demonstrated above and in Plaintiffs’ motion for summary judgment, it is undisputed that Defendant actually disseminated at least 11 of Plaintiffs’ copyrighted sound recordings. (SOF, Doc. No. 31, at ¶¶ 5-6; Exhibit 12 to SOF at ¶¶ 13, 17-18.) These 11 sound recordings are shown in the “systemlog.txt” file, and were downloaded from Defendant’s computer by Plaintiffs’ investigator on January 30, 2006. (Jacobson Decl. ¶ 6 and Exhibit 1 thereto.) Each of these actual, unauthorized disseminations of Plaintiffs’ copyrighted works violates Plaintiffs’ exclusive distribution right under the Copyright Act."

(emphasis added)

So I think any analysis would have to start there. Can you t have an unauthorized distribution between someone authorized to have a copy and someone authorized to get copies?

Colin said...

William Patry said:

Now on to Anon's question to me. I think: (1) making a copy for your own use is fair use no matter what acts occur afterwards

Is the fair use based on continued possession of the original copy or does it exist separately from that copy?

Example: if I buy a CD (or a vinyl record) and rip it to my PC then that is fair use, sure. If I subsequently sell the CD/record then is it still fair use to keep the copy on my PC? Would it be fair use if I had borrowed the CD/record from a friend or from the library instead?

Counter-example: friends with pre-school children routinely make back-up copies of DVDs which their children watch. This is because their kids are very prone to damaging the original DVDs and leaving them unplayable. It would be hard to argue that making and using these back-up copies is anything other than fair use.

Ray Beckerman said...

1. The judge asked the parties to brief this question "Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"

2. The answer he got to that particular question was not responsive. It was this: "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) 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."

3. The other answers the plaintiffs' gave to other questions are irrelevant. All I was ever reporting on was the answer to the question as to whether the copies on the computer were themselves "unlawful".

4. From those who think that the RIAA wasn't talking about copying cd's into mp3's, I have yet to hear a satisfactory explanation for the RIAA's inclusion of the following language in its answer: "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) 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....."

Anne said...

Ray wrote: >>> I have yet to hear a satisfactory explanation for the RIAA's inclusion of the following language in its answer: "It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (Excess elided for brevity.) <<<

-----

That's easy - remember, it was not Cary Sherman or the RIAA who wrote that. It was their lawyers. And remember further that anything *not* introduced as evidence at the proper time may be much harder to get in later. So lawyers tend to err on the side of including (or, if you like, overincluding) anything and everything that could be relevant as evidence. One never knows, up front, on what picayune fact a case will turn.

That said, this paragraph talked about, among other things, screenshots of the MP3s *in the Kazaa shared folder*, which was clearly being introduced as evidence pointing towards the intent to *share* the MP3s through Kazaa.

Ordinarily one has to wait in a case like this for the Court to opine whether this was relevant, and whether, for example, the rest of the world need to worry about copying MP3s for personal use. What we have here is the rather unusual case of the plaintiff themselves saying "even *we* aren't worried about people making MP3 copies for personal use."

For those who worry that the RIAA will take their word back, and *will* go after people for making personal use copies, remember that they have now said this on the public record. While this would certainly not necessarily be dispositive in a case against an individual for making a personal use recording, it would definitely make the case an uphill battle for the RIAA, having now said this on the public record. I personally heard Cary Sherman saying this during his NPR interview, and you can too. You can listen to the full interview here (requires Real Audio):

http://www.npr.org/blogs/talk/2008/01/rip_this_and_sue_that.html

(Click on the link near the top that says "Listen to this 'Talk of the Nation' topic")

Or, you can listen to these excerpts here:

http://theinternetpatrol.com/Cary-Sherman-RIAA-1.mp3

http://theinternetpatrol.com/Cary-Sherman-RIAA-2.mp3

Let me add that I am by no means an RIAA apologist, and we have certainly written plenty taking them to task. But demonizing them helps nobody.


Kind regards,

Anne

Anne P. Mitchell, Esq.
CEO/President
Institute for Spam and Internet Public Policy
Prof. of Law, Lincoln Law School of SJ

William Patry said...

Colin, in October 2005 I did a post on iPods and addressed your questions. See: http://williampatry.blogspot.com/search?q=first+sale+hard+copies+iPod

Ray Beckerman said...

Dear Anne,

I think you are overlooking the fact that this was not a general brief. It was a supplemental brief requested by the judge in which he asked the parties to brief certain very specific questions. One of the questions was:

Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"

The RIAA's response to this question was as follows:

It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) 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.

To focus on 8 words in that paragraph and ignore the others is a mistake.

Likewise I am afraid you are overlooking the fact that this issue was raised at the Capitol v. Thomas trial and played a pivotal role in its outcome. During the direct examination of Jennifer Pariser, SONY BMG's head of litigation, she was asked in a leading manner whether it was in fact illegal to make even a single copy of a song file, and she said yes, it's stealing one song. Then when plaintiffs called the defendant Jammie Thomas to the stand, they brutally cross-examined her as to the fact that when she copied song files from her cd's to her hard drive she hadn't obtained "permission" from the plaintiffs. See eyewitness account by David Kravetz of Wired.com, who covered the trial in person gavel-to-gavel.

Now if you think the law firm hired by the RIAA to represent the record companies is taking a position in court, on an issue as sensitive as this one, that it has not been expressly authorized to take, I think you are being extremely naive.

Eeyoresbaddream said...

Criticizing people for referring to file "sharing" as stealing is probably no different than criticizing people for referring to it as "sharing" which sounds like borrowing Dad's SUV to go to soccer practice. We are told that categorizing "stealing" as "stealing" overlooks fair use, etc.

I think it will be man bites dog when the day comes that "fair use" is not used as a euphamism for "stealing". That is something that is very unlikely to happen from newspapers who uncritically publish Lessig's op-eds.

Ray Beckerman said...

Any of you folks who bought Cary Sherman's "disclaimer" should read this.