In a filing to the US Copyright Office, the Recording Industry Association of America (RIAA) attempts to undo a statement it made in court during the recent successful prosecution of the Grokster p2p company.
In court RIAA lawyer Don Verrilli said: 'The record companies 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.'
However in the Copyright Office filing the RIAA takes a contrary view.
'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,' it argues. 'In this regard, the statement attributed to counsel for copyright owners in the MGM v. Grokster case is simply a statement about authorisation, not about fair use.'
In other words, explained Fred von Lohmann, senior staff attorney for the EFF, a leading digital rights campaign organisation, if you want to copy a CD to your iPod, get permission first.
'If I understand what the RIAA is saying, "perfectly lawful" means "lawful until we change our mind", he
wrote in the EFF blog. 'So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of their sufferance. What about all the indie label CDs? Do you have to ask each of them for permission before ripping your CDs? And what about all the major label artists who control their own copyrights? Do we all need to ask them, as well?'
The RIAA filing will help to determine what are considered 'non-infringing' activities under the US Digital Millennium Copyright Act (DMCA). The law requires the US Copyright Office to set exemptions to the DMCA's stipulation that makes it illegal to circumvent digital rights management (DRM) anti-copying technologies.
In addition to attempting to have CD copying to iPods outlawed, the RIAA also believes that making a back-up is outside the realms of fair usage.
'Similarly, creating a back-up copy of a music CD is not a non-infringing use,' it stated, adding that, 'the fact remains that there is no general exception to allow back-up copying and thus no justification for allowing circumvention of access controls for this purpose.'
The EFF has declined to submit evidence this year, having done so in the previous two, because it believes 'the rulemaking process is simply too broken' and that consumers are simply being ignored.
'Where consumers are concerned, the Copyright Office discounts their concerns as "mere inconveniences", Lohmann explained. 'Copy-protected CDs are no problem because you can play them on CD players, even if they won't work in your computer. Where the copyright industries are concerned, in contrast, the Copyright Office presumes that DRM is the only thing that stands between them and financial ruin.'