The Fight over Ripping Music at Home

Implications: The Washington Post recently reported that the Recording Industry of America (RIAA) was suing an Arizona man for copying onto his computer music that he had legally purchased in physical form.  The story turned out to be false; RIAA was not suing on such a theory.  But the mistake was picked up on CNN and echoed throught the popular press, and as a result today there is enormous pressure on RIAA to speak up about what the law really says about home copying of legally purchased music.  In this post, I talk about what they have and what they should say -- and the gap between those two.

Analysis: In early January, a reporter at the Washington Post made a mistake.  Reading court documents in an on-going litigation, the reporter thought that the music industry was suing an individual for copying a legally purchased CD onto his computer hard drive.  The reporter understandably wrote a provocative story, and quickly the story spread in the media and online.  Was the Recording Industry Association of America (RIAA) really coming out against the millions of us who move our legally purchased music from CD to computer?

The answer turned out to be "no", and indeed even the typically anti-RIAA blogosphere has come to RIAA's defense.  The case was much less sensational than the reporter let on; the accusation was not merely that the accused individual stripped music to his hard drive, but more boringly that he put his ripped music in a shared music folder from which it could be broadly copied and distributed.  Of course RIAA can sue on that theory.  Yawn.

Nonetheless, the misinformation put RIAA in a bind.  The best answer to the wrong story would have been a two-pronged "no, we didn't say that" plus an "and clearly that's not remotely our position"; but RIAA instead said only the former.  Why? 

The sad reality is that it is hard to say the fuller, better sentence.  My suspicion is that most RIAA members believe it in the abstract.  Yes, there are good arguments to suggest that home non-commercial ripping ought not be allowed; but that ship has already sailed, and the music industry for the most part realizes that.  But to actually articulate the contours of the permissible ripping -- "non-commerical"?  "small-scale"? -- is an Herculean task.  That's why law typically moves forward in case-by-case, fact-intensive steps.  Otherwise, it is just too easy for mistakes to be made, and some key caveat or condition to be overlooked.

Does that make RIAA a disappointment?  Sure, a little.  I'd love to see the sweeping newspaper editorial where RIAA would say "hey, we don't know how to say it with legal precision yet, but we really want to make clear that small amounts of non-harmful home copying is okay with us"; and I'd love even more to see some serious work done on a specific legal rule that would help everyone understand what they can and can't do.  

But let's not be too hard on them, either, because even while RIAA is being awkward in some of its words, it is at the same time speaking well with its actions.  To wit, the music industry hasn't sued anyone for harmless home copying, and that history of not suing is pretty good confort and evidence about the industry's stance.  Indeed, that's what made the initial errant news report so interesting, so troubling, and, in the end, so irresponsible.