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A Legal Assault on CD Ripping? Don't Bet on It

Posted by: Stephen Wildstrom on December 29, 2007

There’s a story making the rounds on various blogs this weekend (see, for example, this TechCrunch post) to the effect that the Recording Industry Assn. of America is planning a legal assault on people who rip digital copies of their own CDs. The music industry may be dumb enough to try this, but its chances of success are nil.

This latest flurry seems to be the result of an article that will appear in Sunday’s Washington Post in which Marc Fisher writes “the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.”

This is a little odd, because the story has actually been around for a couple of weeks. In early December, the RIAA argued in Atlantic v. Howell, one of its endless lawsuits brought against its customers, “Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies….” With the usual caution that I Am Not A Lawyer, I can say with considerable confidence that this is legal gibberish.

In general, U.S. law is very unfriendly to consumers who want to create digital copies of of copyright-protected works. But there is one very important exception. The Audio Home Recording Act, codified as 17 USC 1008, states: "No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings." That's about as clear as legal language gets, but what it means in even plainer English is that you can't be sued for making a copy of an audio CD as long as it is only for your personal use. (Because of conflicting language in the Digital Millennium copyright Act, this may be true only as long as the source material is not copy protected, but that is not at issue in this case.)

It's not clear from the RIAA's brief how it plans to get around this statutory safe harbor. I suspect the industry is once again putting on a scary mask and trying to frighten people. I believe that most of the RIAA's suits have been legally sound if extremely stupid as business propositions. But in this case, the industry is wrong on every conceivable count.

Reader Comments

John C. Dvorak

December 30, 2007 6:44 PM

This law specifically names devices but fails to include a computer hard disk. It can be argued that a computer hard disk is NOT a "audio recoding medium" in the strictest sense.

But maybe I'm still WRONG on every conceivable count. Cripes.

Steve Wildstrom

December 30, 2007 11:47 PM

@John Dvorak You never know what courts are going to do, but the Supreme Court has had two cracks at ruling out hard drives as a "digital audio recording medium," once in RIAA v. Diamond Multimedia and again in the Streamcast case. In the latter, the RIAA and MPAA wanted the court to overturn the Betamax decision and essentially outlaw consumer recording. The court ruled against Streamcast, but on much, much narrower grounds.

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