Friday, January 04, 2008

Update on the RIIA Ripping story

Here is a link to a CNet story about an NRP debate between Cary Sherman and Marc Fisher on the Post's story. In the story Cary goes over the Jennifer Pariser quote in the Thomas trial:

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.
Cary is reported as saying :

"The Sony person who (Fisher) relies on actually misspoke in that trial," Sherman said. "I know because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry."

I have known Cary for 25 years and have the highest respect for him, and believe him. One can easily see though why people might have thought otherwise since she is quoted as saying


Shane said...

"I know because I asked her after stories started appearing. It turns out that she had misheard the question.

One wonders then, since Cary Sherman is a lawyer, an officer of the court and worthy of your continued highest respect, when Mr. Sherman alerted the court and opposing council to this materially false or "misspoken" testimony which Sherman had direct knowledge of?

Anonymous said...

I don't understand, even if the person misheard the question and thought it was about downloading.

If it is Sony's position that it is okay for a person to make a copy of a song that he or she bought, for his or her own use, then why would it not be okay for a person to download a copy of that same song for his or her own use rather than going through the process of creating an mp3 from a hard media recording? The end result is exactly the same: the person has an mp3 copy on his/her computer of a song that he/she already owns on a CD (or a cassette tape, or 8-track, or vinyl record)?

Shane said...

BTW, this could all be put to rest if the RIAA would declare publicly that it is legal to rip CDs. Sherman had the opportunity to do so in the NPR interview and, as usual, punted.

The RIAA has no problem declaring what they think is illegal, including the extremely dubious "making available" theory which would make all libraries and video rental stores liable for copyright infringement for all the copyrighted works in their possession regardless of whether any actual infringement ever took place, yet when it comes to saying what is legal the RIAA hems and haws about how complicated the law is. In reality, the RIAA is not hemmed in by any such confusion since it could simply declare their belief that CD ripping is legal and make a binding indemnification/promise to never pursue anyone for CD ripping. As it is, they may be estopped from doing so based on their testimony to the Supreme Court in Grokster, a case that Sherman could have brought up but apparently didn't.

The big problem is that the RIAA espouses different things to different people. They are copyright maximalists who try to obfuscate that fact when called on it by the media. The RIAA is the organization that tried to ban all mp3 players forever by suing Diamond Multimedia over the Rio mp3 player, claiming that such a device had no non-infringing uses. It is kind of hard for the RIAA to pretend that they don't consider CD ripping illegal in that light.

William Patry said...

RIAA also had the opportunity in 1992 with the phrasing of Section 1008, in the AHRA.

Shane said...

RIAA also had the opportunity in 1992 with the phrasing of Section 1008, in the AHRA.

I suppose so, though the AHRA doesn't enumerate any consumer rights so much as indemnify manufacturers in exchange for fees to be paid to the music industry based on presumptive copyright infringement. One way of looking at that would be to say the RIAA still considered home recording illegal but was willing to accept cash from manufacturers for this alleged behavior and still reserve the right to sue consumers at anytime for the behavior the RIAA had already presumptively collected (and still collect) fees for*.

*The AHRA fee collection system is Byzantine, but ultimately around 40% of the fees go the record labels who collectively lobby under the aegis of the RIAA.

joshua wattles said...

The RIAA has no duty to do anything other than function as a copyright maximalist organization and "get away with it" when that proves necessary. Consumers and copyright user groups have their own responsibilities. The political process determines the outcome - - not the integrity of any of the arguments (unless integrity is what makes the argument attractive to Congress). ;-)

I think integrity of the copyright laws is found in a proper balance between protecting cultural works, providing incentives to their creation and building a use-able culture. Almost by definition a trade organization and its executives are incapable of contributing to finding points of balance. That's someone else's job or function.

William Patry said...

Shane, you are right of course about how the payment part of the AHRA. My comment was directed toward the deliberately backwards phrasing of Section 1008 and how that reflected the industry's refusal to concede the point. The fault though was not RIAA's but Congress's, including mine since I was there then, although not when the bill was introduced. I do take responsibility for not fixing it.