Is Copying My Own CDs Illegal?

By Brandon Lovested | in Copyright Law, Music | 15 Jan 2008 | 3 Comments

In a court brief filed by RIAA counsel Ira Schwartz in a case involving Jeffrey Howell of Scottsdale, AZ, the RIAA claims that any copying of CDs is “unauthorized.”

According to an article in the Washington Post:

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.

“I couldn’t believe it when I read that,” says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. “The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation.”

At a previous copyright trial in Duluth, Minnesota of Sony BMG versus Jammie Thomas, Sony’s Jennifer Pariser echoed that sentiment by responding when asked if it was all right for a purchaser of a CD to make a copy of it by saying that doing so is “a nice way of saying, steals just one copy.”

However, President of the RIAA Cary Sherman disputes that was what Ms. Pariser meant. In a Wired blog post by David Kravets:

On Thursday, while debating a Washington Post reporter, Sherman told an NPR audience that Pariser “actually misspoke in that trial.”

“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,” Sherman said. “That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry.”

During the Thomas trial, Richard Gabriel, counsel for RIAA, asked the defendant if she had ever burned CDs for herself or to give away. He then followed up with this question:

“Did you get permission from the copyright owners to do that?”

Thomas replied “No.” But the line of questioning purposely co-mingled legal copying and illegal copying, implying that all copying is illegal.

If these shenanigans sound familiar, then you remember VHS and audio cassettes tapes. The media industries went ballistic, sent forth an army of lawyers reminiscent of the flying monkeys in Wizard of Oz, and tried to clamp down on all copying.

New technologies are often disruptive, yet they can also yield new business opportunities and revenue streams. The movie industry hated VHS tapes when they first came out, seeing them only as a threat. After a few years, the industry became dependent upon them and subsequent DVDs for revenues beyond the box office. Illegal copying? Sure it happens, but it doesn’t outweigh the benefit of the new distribution mediums. The problem isn’t copying itself, it’s the redistribution beyond the original purchaser. This specific point is where the focus should be.

The RIAA and MPAA seem to focus on the delivery media, while their customers focus on the content. In the consumer’s mind, they are buying a song or a movie, not a CD or a DVD. Copying from one medium to another is simply a way for the consumer to make their purchased content more convenient to them. No one lugs around a portable CD player anymore despite owning hundreds or thousands of CDs. They transfer their purchased music to a more portable form, such as MP3. For the RIAA and MPAA to claim this transmutation by the consumer is illegal indicates their ignorance, fear and avarice. It’s not the medium, it’s the content, stupid; and I’m not going to buy it more than once.