The mob, I mean, the record industry is at it again

How is the Recording Industry Association of America (RIAA) not brought up on racketeering charges? As this article states, the RIAA continues to insist you don't really own the compact discs you purchase.

In a joint reply filed with the government as part of the triennial review of the effectiveness of the Digital Millennium Copyright Act (DMCA), the RIAA says ripping CDs you legally purchased and/or making backups of those CDs are not covered by "fair use."

There are a number of ridiculous comments from the RIAA in the joint reply, which can be viewed here in PDF format.

One that stands out relates to the bungled attempt by Sony to put a spyware-like digital rights management (DRM) application on its CDs that installed a rootkit on Windows-based PCs, leaving them vulnerable to particular Trojan horse-like virus. In response to complaints that such a DRM prevents users from listening to CDs on their computers, the RIAA counters that many inexpensive CD players are readily available (a footnote even includes prices and links to two models sold on Best Buy's online store...I guess Best Buy is getting a piece of the RIAA action).

Of course, “playback [of a lawfully acquired CD] on a modern CD device installed in personal computers … is unquestionably non-infringing,” as the Register found in 2003. But even in the circumstances described in these submissions, consumers may listen to their CDs, without the installation of any additional software (objectionable or otherwise), on other platforms, notably including stand-alone players that are compatible with CD Audio Redbook Format. The Register found in 2003 that this state of affairs was not “more than a mere inconvenience,” because “standard CD players are readily available and inexpensive.” That is, if anything, even more true today.

That's fantastic...because life isn't cluttered enough, the RIAA wants you to get a CD player to put next to the perfectly capable CD player in the computer on your desk because it would rather resort to computer piracy as a means to extract every last cent from you.

But, wait, there's more. The RIAA then says if you want your music on your computer, you better buy it in a format native to your computer...because you shouldn't have the right to "format-shift" the music you legally purchased on CD.

Where a market is functioning to serve the demand otherwise being fulfilled by unauthorized copying, the likelihood that the unauthorized copying is fair use is diminished. In such a market, the inconvenience that faces consumers of works tethered to specific devices is far outweighed by the threat to the enjoyment of copyright posed by illegal digital distribution facing copyright owners.

That part about the market "functioning to serve the demand otherwise being fulfilled by unauthorized copying" refers to services like iTunes that sell music in a format that resides on your computer or digital music player. The RIAA's position is that since such services exist, anybody who is importing music from a CD onto a computer is doing it for "evil" purposes. Of course, since the RIAA conveniently leaves out any meaningful statistics to back up this statement, I have no idea if this is accurate.

In any case, here is the deal from the RIAA perspective: If you want to store your music in a digital format, you HAVE to buy it in digital format from an online service. Now, as an avid iTunes customer, I don't remember the last time I purchased an actual CD. However, with my eclectic tastes in music, it is not guaranteed something I want is available on iTunes. Also, some people just like buying CDs because they like having something physical in their hands (i.e., the disc, artwork, liner notes, etc.). However, according to the RIAA, if someone buys a CD, that person does not have the legal right to import it onto a computer so the music can reside in his or her digital music library...even though the music is in digital format on the CD.

I boldfaced the part about the "inconvenience" because the RIAA insists you should only be allowed to listen to a CD on a computer with a CD drive--not import it. Of course, even listening to it may be a problem if the RIAA is going to let companies basically put spyware on their CDs. But I digress...the real issue is if I'm flying for five-plus hours somewhere, one CD isn't going to cut it. And I'm not wasting precious carry-on space for a stack of CDs to keep taking in and out of the laptop. And since I can't import them onto my computer, I can't put them on my iPod, which would be the simplest solution. So what the RIAA really means is, "It's inconvenient for our bottom lines if we're not ripping you off by charging you at least twice for the same music so you can have it in different formats."

The RIAA then says that simply making copies of your CDs, without any intent to share or distribute them, is copyright infringement under all circumstances...

To the extent that the submissions propose a similar exemption with regard to CDs, the Register’s analysis of DVDs is equally applicable. The submissions provide no arguments or legal authority that making back up copies of CDs is a noninfringing use. In addition, the submissions provide no evidence that access controls are currently preventing them from making back up copies of CDs or that they are likely to do so in the future. Myriad online downloading services are available and offer varying types of digital rights management alternatives. For example, the Apple FairPlay technology allows users to make a limited number of copies for personal use. Presumably, consumers concerned with the ability to make back up copies would choose to purchase music from a service that allowed such copying. Even if CDs do become damaged, replacements are readily available at affordable prices. Similar to the motion picture industry, the recording industry has faced, in online piracy, a direct attack on its ability to enjoy its copyrights. Granting the requested exemption would further weaken the industry’s ability to protect its copyrights in the digital marketplace.

Now, since I mentioned earlier that I haven't purchased an actual CD in a long time, I don't know if there are any CD replacement programs in place through any retailers or record companies that allow you to swap a damaged CD for the same title at a discounted price. However, I seriously doubt it. Apparently, some studios have programs that allow you to replace broken DVDs at a drastically reduced rate (according to footnotes in the joint reply, Disney and Fox Home Entertainment will replace broken DVDs for about $7 a disc). Since none of the record companies are listed in the joint reply as having such programs for CDs, I can only assume you would have to pay full price to replace a damaged CD (assuming the store does not allow a simple exchange for the same title).

But here is where it gets really interesting, as Ken "Caesar" Fisher writes on ArsTechnica.com:

But they're not done with that argument. The real kicker is buried in a footnote, where the joint reply suggests the unthinkable: that making copies of CDs for any purpose may, in fact, be infringement.

Nor does the fact that permission to make a copy in particular circumstances is often or even "routinely" granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.

Allow me to translate: just because people have been copying CDs in the past doesn't mean that that they had the authorization to do so, and a general trend does not override such explicit authorization. But as the EFF has picked up, the RIAA is engaging in a little historical revision. Their last comment about the Grokster case is attempting to change the substance of comments that were uttered by their own legal counsel. Why they would do this is abundantly clear when you see the statement in question:

"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."

It looks like someone is having a change of heart.

In the world of the joint reply, if and when the RIAA and its member studios say that copying your CDs is not permitted, then it's not permitted. Forget fair use. Forget historical precedent. The joint reply here is arguing that copyright owners have the authority to deny what has become fair use—what their own lawyers have admitted is fair use in front of the Supreme Court of the United States.

Just how many CDs is one person expected to buy? What really bothers me is that the RIAA responses in the joint reply all defend the "copyright owners," but that is laughable. The two groups that get screwed over the most by the RIAA are the consumers and the "copyright owners" (i.e., the songwriters).

Instead of just giving songwriters a bigger piece of the pie, the record industry would rather spend its money on lawyers trying to rip more people off so it can pay for marketing the latest half-naked, no-talent hack in the limited amount of years before she marries a complete loser, has a kid and is forgotten except by the paparazzi who just can't wait for the next time she's smoking and/or drinking while pregnant or driving with her baby on her lap.

By the way, any similarities in that last sentence to factual people or events is purely coincidental.