It’s been almost a week now, but the debate over a Washington Post story about the RIAA going after someone for copying a legally-acquired CD just won’t die. Why? Because regardless of what most of those writing about the issue are focusing on — namely, the WashPo reporter’s refusal to admit that he was wrong — the fact is that the record-industry lobby group is still trying to have its cake and eat it too. They’re crying crocodile tears about how unfair the Post story was, but they refuse to come right out and say that copying is legal under the “fair use” principle.
The background to this one is that the Post said the RIAA’s lawsuit was based in part on the idea that copying of any kind was illegal. Naturally, that got everyone up in arms — including yours truly. Shelley Powers posted a comment accusing me of getting it wrong, and noting that the actual brief in the case referred to copies that were shared using Kazaa. I replied that while that might be the case, the RIAA has made other statements, including those in a submission during a review of the DMCA, that suggest it sees copying as an infringement.
The RIAA’s Cary Sherman responded to the Washington Post writer during a debate on NPR that one of the statements I referred to — the comment by a record industry lawyer during the Jammie Thomas case that making even a single copy was still “stealing” — was based on a misunderstanding (although as far as I can tell this explanation has never been reported anywhere, so it’s hard to fault the Post writer for not knowing that). But the comments during the DMCA review have yet to be explained.
As Ars Technica describes, the submission talks pretty clearly about how making even a single backup copy is an “unauthorized use.” Cary Sherman may protest that the RIAA has never sued anyone for copying a legally-acquired CD, and he may suggest that they have no intention of doing so, but he still refused to say that doing so was actually legal — describing it as “too complicated” to make such a statement.
As Mike Masnick notes over at Techdirt, the RIAA may be correct on the Post story, but that doesn’t change the fact that it is still trying to weasel out of the central issue.