I tried to turn myself in to the RIAA, but it didn’t want me.

When I wrote earlier this week about converting my 2,000-CD collection to MP3 files, I never imagined the 10 pages’ worth of  reader responses it would get online. Many people seemed personally offended at what I chose to do with my discs. They also envisioned themselves as copyright experts, insisting that my choice to use iPodMeister to rip my legally obtained CDs and then keep my discs as payment for its service was illegal. According to those readers, I should go to jail, pay millions in fines, be fired, be reprimanded or suffer any number of unsavory consequences for writing about a company that had previously been covered by Newsweek, the New York Times and others. Several insisted that I should be reported to the Recording Industry Association of America, which prosecutes music copyright violations. I think one reader even claimed to have filed a report with the RIAA, but I stopped reading the comments after a while.

So I called the RIAA. I explained my exact situation, as described in my article. A spokeswoman screamed, “That’s illegal!” Just kidding. Actually, she simply referred me to the RIAA’s Music United website. It explains in detail what is illegal when it comes to music copyright issues, she said. But there was nothing on the site that was even close to my situation. The RIAA’s main concerns appear to be online file sharing, downloading and bootlegging. Throughout, the overriding target is distribution of “multiple copies” of a song or CD.

So I contacted the RIAA again. I explained my exact situation in writing. I said the Music United website didn’t address the issue. I asked for an unequivocal confirmation from the RIAA that what I did was  illegal. The RIAA’s response?

“We’ll pass.”

That’s it? “We’ll pass”? That didn’t sound like a response I’d get for illegally shedding 2,000 CDs. The spokeswoman suggested that I should contact an outside expert if I wanted more.

Figuring that the copyright experts among my article’s commenters probably wouldn’t want to talk to me, I called Michael Fleming at the Twin Cities law firm of Larkin Hoffman Daly & Lindgren. Not only has Fleming done RIAA work for clients, but he also is the chairman of (deep breath) the Cyberspace Law Committee of the Business Law Section of the American Bar Association. In other words, he knows copyright law. His professional opinion? “Boy, you stepped into it!” Then he went on to explain that my situation could be defended under the broadly interpreted “fair use” section of the copyright law and that I’m not going to jail. Really.

Unfortunately, this is still a gray area because fair use is not clearly defined.

“It depends on a judge and a jury and what side of the bed they got up on that day, to some degree,” Fleming said. “If you want to believe that the law has some steadiness, you would look at the issue and see that the fair-use statute talks about what’s the nature of the use, how much you are lifting of it [the music], what this is going to do to the market for selling of copies and the like. You throw all that into the hopper, and you’re still left with: What side of the bed did the judge get up on that morning?”

But Fleming doesn’t think I’ll be going to court to find out.

“If someone is doing an infringing act, who is doing that infringing act?” he said. “It’s not Randy. [If anyone,] it’s iPodMeister. They’re in effect creating that MP3 file, turning it over to you [and then selling the CD]. … Randy is receiving the MP3, but he’s not making it on his own; he’s not doing any of the distribution on his own. You could question whether he has any risk. But iPodMeister is creating that copy and still maintaining the old CD and sending it off to somebody else, creating a new value stream. They’ve got the risk in that whole business scenario. Now, whether there is a risk remains to be seen, but it’s certainly not Randy’s risk that I see in that whole scenario — unless somebody can construe you as being a contributory infringer because you were inducing them to infringe copyright, but that’s a bit of a stretch.”

Fleming wouldn’t say that iPodMeister is in trouble, because “this is an open question.” But he added that the company’s fair-use argument would be entirely different from mine. “If I were them, I’d make sure I have a good insurance policy,” he said.

So I asked iPodMeister owner Kris Shrey for his take on the matter. He said his company has never had problems with copyright issues or the RIAA during four years in business. What you do with your legally bought CDs is up to you, he said. “We’re not talking about somebody who wants to get something for free,” he noted. You are keeping the digital files that you have paid for, he said; most RIAA issues are over music for which the users have not paid.

But the clear implication is that, gray area or no, the RIAA has bigger fish to fry in pursuing copyright violations. Fleming said, “This doesn’t give anybody the clear comfort of ‘Is this legal?’ But I doubt that too many people are losing sleep over this at night. … This really has not been explored.” Heck, he pointed out, the record companies have even taken the position that selling used CDs is a problem. When I pointed out that you could probably go into any used CD store and find that half the inventory is promo CDs, which are not supposed to be bought or sold, he replied, “And the other half is stuff that somebody bothered to rip before they sold it.” The RIAA tends to focus on choke points involving large-scale distribution, such as the battles over MP3.com and the Duluth case of Jammie Thomas, he said.

One thing my column did create was a lot of entertaining reading for Fleming. 

“I loved reading your comment pages,” he said. “For what it’s worth, I think people are correctly raising concerns, or at least it’s worthy of discussion, but at least two-thirds of them get it wrong. There’s just tons of misanalysis, misinformation, conflating one issue into an analysis of another issue — and I give up trying to sort them out after a while, because if you talk to these folks they don’t listen to you.”

This entry was posted on Friday, November 21st, 2008 at 12:20 pm and is filed under Audio. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.