NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
On Sunday, Marc Fisher of the Washington Post wrote a story that said the Recording Industry Association of America, the RIAA, maintains a legal position that loading the contents of a legally purchased CD onto a computer or an iPod is not authorized and possibly subject to a lawsuit. The RIAA says the Washington Post story is false.
The dispute arises from a suit the RIAA filed against a man in Arizona who bought CDs, copied them into his computer as MP3 files, and then put them into a shared folder that other people could access through Kazaa, a computer program for sharing music. He's being sued for that last part.
But according to Marc Fisher, legal documents and some statements by industry officials make it clear that the industry regards the simple act of copying a CD onto your computer or your iPod as illegal.
In a moment, Marc Fisher and Cary Sherman of the RIAA join us. If you have questions about what's legal and what isn't, our number is 800-989-8255. E-mail us: firstname.lastname@example.org. You could also comment on our blog at npr.org/blogofthenation.
Washington Post staff writer Marc Fisher is with us here in Studio 3A and Happy New Year. Thanks for coming in.
Mr. MARC FISHER (Staff Writer, Washington Post): Happy New Year.
CONAN: And Marc, let's begin with you. Thousands of people have been sued for sharing files, a practice which is now pretty well-established. What caught your eye in the case of Jeffrey Howell?
Mr. FISHER: Well, this is an Arizona man who, as you say, has been - is one of the 20,000 plus people who've been sued by the recording industry for illegally downloading or uploading music. And what was different in this case is a statement by the lawyer in the case for the recording industry who said that it is undisputed that the defendant possessed unauthorized copies of copyrighted sound recordings on his computer. And now, there's a whole factual dispute between the recording industry and Mr. Howell about whether he indeed had music illegally in the shared files on his computer.
But if you move beyond that, what's interesting here is that here and in a couple of other places, the recording industry is kind of a disconnect between its public policy statement, which is that, hey, it's okay to make a personal copy if you legally obtained the CD, you can transfer that music onto your computer for your own use. And yet, in some legal filings and statements, they've been saying things such as that ripping songs from the CD is just a nice way of saying steals just one copy. That's what the Sony lawyers said in one case.
And here, we have in another case, this Arizona case, this idea of that you have an unauthorized copies when you have them on your computer. In fact, I've got an e-mail from Mr. Howell just this morning in which he said that he does have MP3s on his computer but that these files were never placed in a shared folder and that they're instead in his My Music folder, which was created by Windows.
Mr. FISHER: So, you know, the bottom line here is that the recording industry continues to use the courts as a primary venue for their battle to protect their industry's business model. It's a business model that like all old media is falling apart. It's a real struggle, a genuine struggle for in the future. And yet, instead of reaching out new ways, they're going after college students and others with legal things.
CONAN: Well, let's bring Cary Sherman into the conversation now. Again, he's the president of the RIAA, the Recording Industry Association of America.
Thanks very much for being with us. I appreciate your time.
Mr. CARY SHERMAN (President, Recording Industry Association of America): Thank you for having me.
CONAN: And what's wrong with Marc's picture?
Mr. SHERMAN: Well, the problem is that the story is just wrong. First of all, we haven't taken a position that ripping CDs to your computer or your digital music player like an iPod is illegal. This case was about illegal downloading. It's a typical case of the many that we've brought against uploaders and downloaders on Kazaa, a peer-to-peer file-sharing service. And the issue is where the defendant has fringed our copyrights when he put the music files in the shared folder, which allows millions of other people on the network to download the music.
So we said in the brief that when the defendant ripped the CDs onto the hard drive of his computer and put them in the share folder, those copies were no longer the authorized copies that we distributed. The Post story picked up one sentence in a 21-page brief and then picked the part of the sentence about ripping the CDs onto the computer, but simply ignored the part of the sentence about putting them in a share folder.
CONAN: So quoted out of context.
Mr. SHERMAN: Yes. And had we had an opportunity to talk with Marc before the article was published, we would've pointed out that error. We never had the opportunity because although he called and we called back, he never then returned the call and made the connection even though it was a week or 10 days before the article appeared.
And, you know, this is a very complicated issue, these copyright issues, and one would expect that you would try and get some expert opinion to make sure that you've got it right. Unfortunately, the only expert opinion that I saw quoted in the article was from a lawyer who specializes in bringing - in defending the people that we have sued for this peer-to-peer file sharing. He even runs a blog site called, the people - The RIAA vs. the People.
Mr. SHERMAN: I mean, this is a guy, obviously, with an agenda. I would have hoped that we would've had an opportunity to clarify the record.
CONAN: The person - Marc Fisher quoted, not necessarily Marc Fisher himself.
Mr. SHERMAN: Right.
CONAN: But we're going to give Marc Fisher a chance to come back.
Mr. FISHER: Well, as Mr. Sherman knows, the - not only was the lawyer on the other side quoted, but so were statements from the RIAA's own Web site as well as a statement by its own spokesman who would - unfortunately, didn't get back to me on a timely basis.
But the fact is here that this is a case where it's not just this one Arizona case where the recording industry is making this distinction between what it says in public and what it's saying in its legal arguments. And there are in fact several places, including on the association's own Web site, where it says that if you make unauthorized copies of copyrighted music recordings, you're stealing. You're breaking the law and could be held legally liable.
And as the Sony anti-piracy officer said in anther case, even ripping from your own legally obtained CDs, is stealing a copy. So for legal reasons, I think they are making a particular argument in these cases that is distinct from the more accommodating position that they've taken on a public policy basis.
CONAN: Cary Sherman?
Mr. SHERMAN: I think that this just further reflects why it's unfortunate that, you know, a callback within two hours wasn't sufficient to reach Marc even though the article was published nine days later. The fact is that had he called, we would've been able to tell him that that Sony person who he relies on actually misspoke in that trial.
I know because I asked her, because stories started coming out immediately after her testimony about what she said and it turns out that she had simply misheard the question, thought that it was a question about illegal downloading, when it was actually a question about ripping CDs. That is not the position of Sony BMG, it is not the position of that spokesperson, it so not the position of the industry. It would've been nice to clarify that.
I have told other reporters that that was a misstatement by Ms. Pariser, but it never got printed anywhere because nobody thought it was newsworthy enough. But now, it got picked up in the story by Marc because we weren't consulted and we could've clarified this situation.
Mr. FISHER: You know, Neal, these are not isolated incidents. This is not a reporting error. This is all over the RIAA's own Web site - all of their public statements. Here's another one from their own Web site: There is no legal right to copy the copyrighted music on a CD onto a CD-R. They do - and they go on to equivocate and say, well, it usually won't raise concerns if you go ahead and transfer a copy of legally obtained music onto your computer. But they're not willing to go all the way and say that that's a legal right. And that's…
CONAN: Well, let's ask him. Is that a legal right?
Mr. SHERMAN: I think that that is a question that you just can't answer in the abstract. That's the problem. There are a hundred hypotheticals that you can come up with to try and come up with whether it's legal or illegal in this particular set of circumstances. And you can go down that path trying to figure it out case by case and it just makes you realize that sometimes, the law just isn't as clear as you'd like it to be.
Mr. SHERMAN: Believe me, it would be better for everybody if the law were clear. But copyright law actually relies on the circumstances of the case - the specific facts of the case to make this kind of determinations, and you can't make them in the abstract.
That's why on the Web site - and, you know, Marc is quoting from the portion of the Web site at the beginning about saying unauthorized copying is illegal and so on, but it doesn't quote from the same Web site just farther down the page that says specifically, when it comes to copying digital music, what's okay and what's not. And we put in there on copying CDs, it's okay to copy music onto an analog cassette, not for commercial purposes, it's okay to copy music onto special audio CD-Rs, mini discs and digital tapes, but again, not for commercial purposes.
Beyond that, "there's no legal right," in quote, to copy the copyrighted music on a CD onto a CD-R. But burning a copy of a CD onto a CD-R or transferring a copy onto a computer hard drive or a portable music player won't usually raise concerns so long as the copy is made from an authorized original CD that you legitimately own and the copy is just for your personal use.
So, we're making it very clear what we think the practical guidance ought to be for consumers in terms of behavior. It doesn't really matter what our interpretation or somebody else's interpretation of the law is. We're trying to give some guidance to people and that was ignored as part of the story.
Mr. FISHER: Actually it was quoted in the story, but, you know, I think one thing we can agree or I hope we can is that the industry is relying on outdated law and that the law really has not kept up with technology and that's why…
CONAN: And these outdated laws are still on the books, right?
Mr. FISHER: Absolutely, absolutely.
CONAN: Therefore that is not outdated.
(Soundbite of laughter)
Mr. FISHER: Well, no, but law has not kept up with technology and I think everyone in the old (unintelligible)…
CONAN: That's - that's possible.
Mr. SHERMAN: And it's also true that this is not something that every copyright industry or copyright owner will necessarily agree upon.
CONAN: I agree.
Mr. SHERMAN: The fact is that music companies have been the most permissive in making clear to the public that copying for personal use is not objectionable. You can't copy a DVD just because you want a backup copy. You can't copy most computer software just because you want an extra copy. You can't copy a videogame. We alone, among the copyright industries, have basically made clear on Web sites like this that this is not - has not been objected to.
CONAN: Let's hold it there just for moment. Our guests are Marc Fisher of the Washington Post, author of the book, "Something in the Air," and Cary Sherman, president of the Recording Industry Association of America. And you're listening to TALK OF THE NATION coming to you from NPR News.
And let's see if we can get Rob(ph) on the line. Rob with us from Wilmington, Ohio. Is that Washington or Wilmington?
ROB (Caller): Wilmington, Ohio. Yeah.
CONAN: Wilmington. Go ahead.
ROB: I have a question for your group there, your two guys. It's been a longstanding agreement between friends that as long as you're not trying to sell it, it's okay. In other words, like if I make a download and I record it to a CD for a friend and give it to them, then that's okay. And I'm trying to make that clear to my friends that it's not okay and I just want to clarification. What is…
CONAN: Non-commercial use for a friend or two, is that…
Mr. SHERMAN: No, we - if everybody engages in non-commercial use, you can still have the aggregate impact that we are suffering from piracy right now. File sharing is non-commercial use by the individuals, and look at what it's done to the industry. So we really say, personal use is one thing, distribution is another. And it doesn't matter whether it's for sale or not. Once, you're giving it away to somebody else, you're depriving the industry of an opportunity - the artist of an opportunity to sell their works, there are songwriters to be paid royalties, there are artists, there are producers, all the people who have put their sweat, blood and tears into making that music.
CONAN: But you're probably talking about millions, maybe tens of millions of people who do this.
Mr. SHERMAN: A lot of people do it and the fact of the matter is that in the old days with tape swapping and, you know, one to one…
CONAN: It's difficult.
Mr. SHERMAN: It didn't make much of a difference compared to what is capable now with peer-to-peer technologies and so on and so forth. And that's why we have been very, very clear that P-to-P downloading and uploading is illegal and we have brought tens of thousands of cases to make that clear. Contrast that with the personal copying issue that has been written about in a story, not a single case has ever been brought, not a single claim has ever been brought.
Yet there's a newspaper report that says that we're going after it. And also, CNN picked up this story, television stations across the country, blogs, everybody thinks that we're suing people for copying, for ripping CDs to their computers. That's really unfortunate. It's misleading consumers and it's simply not true.
CONAN: Let's see if we can get another - thanks very much for the call. Let's see if we can get another caller on the line and this is going to be Fred(ph). Fred with us from Tucson, Arizona.
FRED (Caller): Hi. Okay, to be honest, I'm getting more confused than I am, you know, having the issue clarified. My specific case is I have phonograph records, ancient LPs from 30 years ago, 20 years ago, which I legally purchased and I would like to copy those for personal use onto a computer CD-R. My impression is that your guest is saying well, this - whether or not this is legal or not, we won't say we haven't been prosecuting people out of the goodness of our hearts, but whether we could theoretically - we simply…
CONAN: Would go on a case-by-case basis.
FRED: Exactly. Also…
CONAN: Cary Sherman?
Mr. SHERMAN: But not a single case has ever been brought by anybody for doing the kind of thing you are talking about. We can't speak for all copyright owners and say whether it's legal or illegal and it's going to vary from case to case anyway.
Copyright law, whether we like it or not, is very complicated, but that's why we've tried to make clear. And especially, there is a Web site called MusicUnited.org that all of the music industry organizations got together and agreed upon to give guidance to consumers like you saying that copying like that for personal use is not objected to.
CONAN: Okay, Fred…
Mr. FISHER: And yet what we don't have is any clear statement as to what the legal rights are and what the story was - that I wrote is really about is the idea that there is on the part of the recording industry a desire to hold on to some thin thread of a legal right to reserve - keep that in reserve while, yes, granting the idea that you can make a personal copy for your own use. But it's this unwillingness to say, you know what, the law may not be quite up to snuff with where things are in the marketplace, so let's move beyond that. Instead of that, the industry clings to these old notions and that's unfortunate because you end up with this confusion that we're hearing from listeners - we live in a media culture today where users are empowered and they're brought up to believe that information is free. That puts the industry in a very tricky position.
Mr. SHERMAN: But, Marc, it's one thing to criticize us for not saying what's legal, but what your article said was that we specifically had claimed that something was illegal when we said no such thing.
Mr. FISHER: Well, that's not what the lawsuit said.
Mr. SHERMAN: No, the lawsuit doesn't say that at all. If you read the sentence, you specifically left out, the putting it in the shared folder, which was what made it illegal. And that's been commented on, by the way, by a lot of blogs. What's interesting is that we certainly have our critics in the blogosphere.
Mr. FISHER: Oh yes, you do.
Mr. SHERMAN: And some of our strongest critics have basically come to our defense saying, wow, the Post really got this wrong.
CONAN: All right, Marc, the fact that nobody has ever been prosecuted for this certainly establishes a legal precedent, sort of on its own.
Mr. FISHER: That's right. So then, you have to ask yourself, why is the industry continuing to cling to that notion that there is no such legal right?
CONAN: Well, I'm afraid we're going to have to leave you two agreeing to disagree at this point. Cary Sherman, thanks so much for your time today.
Mr. SHERMAN: My pleasure.
CONAN: Cary Sherman is the president of the Recording Industry Association of America. Marc Fisher is a columnist for the Washington Post and he joined us here in Studio 3A as did President Cary Sherman.
Tomorrow, it's going to be a special on the results of the Iowa caucuses. Tune in to us for that. Then, SCIENCE FRIDAY on its regular timeslot next week.
I'm Neal Conan. You're listening it TALK OF THE NATION from NPR News.