SALON

Wednesday, Jan 2, 2008 6:56 PM UTC

The recording industry isn’t attacking iPods. Yet

The music cops hate it when you make digital copies of your own CDs. But they're not going to court over that practice, for now.

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Topics: Music, Copyright, Intellectual Property,

The Washington Post reports today that the recording industry’s lawyers have gone nuclear: While they were once content to sue only their customers who traded songs with others, now the music cops will go after you if you simply transfer your own music — CDs that you purchased legally — to your own computer, the paper says.

That’s a frightening thought — frightening, I mean, if you’re constantly on the look-out, as I am, for signs that a highly contagious brain-eating bacterium might have been unloosed upon the population.

That music execs would even consider something like this — an attempt to put a legal halt to iPods! — suggests something far worse than the short-sighted corporate venality we’ve come to expect of them. No, such a complete, collective loss of mental capacity can only be biological. We knew the music industry was dumb, but this is beyond dumb, folks, this is tragic. Get America’s Mayor on the horn, we’ve got ourselves a national emergency!

Well, but … maybe not. The Washington Post, it seems, appears to have jumped the gun — or, to be less kind, to have been taken. The paper hangs its story on the counsel of Ray Beckerman, an attorney who, bless him, is a tough fighter of copyright claims and who represents many people whom the industry has gone after.

Beckman points the Post to the case of Jeffrey Howell, a fellow in Scottsdale, Arizona, whom the music industry recently sued for copyright violation. Howell had a couple thousand music files on his computer, some of which had come from his own CD collection.

According to the Post, the music industry’s brief in the case argues that “the MP3 files Howell made on his computer from legally bought CDs are ‘unauthorized copies’ of copyrighted recordings.”

That’s true — the music industry does say that Howell did not have the labels’ authorization to make those copies. But as Techdirt’s Mike Masnick points out, the RIAA is not suing Howell merely for making unauthorized copies of his own music. The case is slightly more involved — the industry says that Howell violated its rights by copying music from his private collection and then putting the songs in his Kazaa Shared folder, thereby making the music available to others.

Now, to be sure, this move, too, is a legal stretch. The industry is saying that Howell ran afoul of the law just by putting files where other people could get them — a claim that juries and judges might find hard to swallow.

But still, the move is in line with the industry’s legal history, and not, as the Post claims, a shift in strategy. The RIAA, the case suggests, is still only going after people who are trading music, not those who are just ripping it.

Does this mean that the music industry won’t ever sue people for copying files to their computers or iPods?

Record executives have made clear that they don’t think that ripping music is legal. During testimony in the industry’s case against one file-sharer last fall, a lawyer for Sony BMG said that she considers any copy of a song — ripping from a CD to your computer so you can listen to it on your iPod, say — to be theft.

“When an individual makes a copy of a song for himself, I suppose we can say he stole a song,” Jennifer Pariser said. Making one copy is “a nice way of saying ‘steals just one copy.’”

So, OK, it’s a slow-onset bacterium.

But for now, at least, the contagion is being kept in check. On its Web site, the RIAA says that while people have “no legal ‘right’” to copy music on to their hard drives, doing so “won’t usually raise concerns” as long as “the copy is made from an authorized original CD that you legitimately own,” and “the copy is just for your personal use.” The group adds: “It’s not a personal use — in fact, it’s illegal — to give away the copy or lend it to others for copying.”

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society. More Farhad Manjoo.

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