It's a brief post by John at Dymaxion World, a Canadian blogger (who looks interesting; I think I'll add him to my blogs on the side there), about the RIAA's latest "legal" "arguments". It refers to this recent brief on the Electronic Frontier Foundation's Web site.
As part of the on-going DMCA rule-making proceedings, the RIAA and other copyright industry associations submitted a filing that included this gem as part of their argument that space-shifting and format-shifting do not count as noninfringing uses, even when you are talking about making copies of your own CDs:"Nor does the fact that permission to make a copy in particular circumstances is often or even routinely granted, 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 owners in the MGM v. Grokster case is simply a statement about authorization, not about fair use."
For those who may not remember, here's what Don Verrilli said to the Supreme Court last year:"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."
P.S.: The same filing also had this to say: "Similarly, creating a back-up copy of a music CD is not a non-infringing use...."
So not only are they claiming that it is illegal to copy legally purchased music to more conveniently use it, they said the opposite a year ago.
John gets right to the point about problems with this.
This is why the logic of "lost revenue = theft" is so pernicious. We basically bought the argument that the music companies had the right to sue to protect their business model, and now this is what it gets us.
Ethically he's right, but legally, as my admittedly amateur understanding goes, this is a real gray area. For all I know, the law is on the RIAA's side on this.
Anyone who played in their high school band probably saw the legal copyright notices saying "do not copy without permission" on the bottom of their music. Which was, of course, copied. (Can't check right now, but I think every book commercially marketed has a similar message, you just never notice it because it's not on every single page.) Unless I'm very mistaken, that's illegal; publishing companies turn a blind eye just because single-handedly outlawing band class would be bad press. Copyright is the right to copy, so if you don't have explicit permission from the copyright holder, you don't have a right to copy. Q.E.D.
I don't know, this is turning into a general "there are no winners here", instead of my usual "copyright lawyers are evil!" But even though it's easiest to think of the world that way, sometimes a broken or oppressive system creates its villians instead of the other way around.
Via a guest-blogger at Ezra Klein's, who had a very good take on this.
Remember, the customer is always right, until the moment businesses realize they can make more money not by providing a better product but by getting the courts to protect their rent-seeking behavior.