Its not about that, unfortunately.
They're claiming that it isn't fair use to create backups as a strategic move. You may not be aware of this but there is a provision in the DMCA that requires a review of the law by the Copyright Office (<sarcasm>because they're not biased at all</sarcasm>) once every three years for the following purpose:
The purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access controls.
Civillians (like you and I) are able to submit requests for exemptions from any provision of the law to enable us to make non-infringing use in spite of the provisions of the law.
The biggest provision of the law that comes under constant fire is, of course, the anti-circumvention provision. There is well established caselaw that shows that it is a non-infringing use to make personal backup copies of copyrighted materials. For example, you are allowed to make a photocopy of a book for personal, non-commercial use. You are allowed to make software backup copies, backups of VHS tapes you bought, and dubs of cassette tapes. There is also caselaw protecting our rights to make analog recordings off of the radio for private, non-commercial use.
The goal of the recent RIAA statements (and in fact their context) was in reply to requests for exemptions from the anti-circumvention provisions of the DMCA in order for people to make backup copies of DRM-protected CD discs (such as the Sony discs that recently caused all the scandal), DVD movies, and other similar products. While the goal of backing up these types of media has always been considered fair use, the DMCA's anti-circumvention provision prevents you from breaking the DRM to create these copies. In order to avoid the copyright office granting these exceptions, the RIAA/MPAA is now trying to claim that backup copies are not protected by fair use statute.
This is pretty shaky legally. In fact, they're even trying to revise the past a bit. During the infamous Grokster case, the RIAA lawyer said in a statement
to the Supreme Court of the United States:
"The record companies, my clients, 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."
The RIAA is now claiming:
Nor does the fact that permission to make a copy in particular circumstances is often or even "routinely" granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.
So, they're trying to say that it was only legal because they authorized us to do so. They can, they claim, revoke this authorization at their whim. The real big goal of this is a power play over the future of media distribution. The RIAA has dreams of reselling the same content to you over and over. If you want to play your media on your iPod, they'll sell you an iPod version. On your car's "digital" radio? They'll sell you a car-stereo version. On your computer? They'll sell you a computer version. And on and on. It's about monetizing format shifting, and the fight isn't over current CDs. Its about the music formats of the future which will be completely digital and, in the RIAA's dream world, completely locked down.
If you can get an exemption to break the DRM for backup and format-shifting purposes, it will make these second and third sales very difficult for the RIAA to get. You can see this purpose clearly in the following excerpt from their statement:
Even if CDs do become damaged, replacements are readily available at affordable prices. Similar to the motion picture industry, the recording industry has faced, in online piracy, a direct attack on its ability to enjoy its copyrights.
The problem with that logic is that it won't work. The DRM won't stop piracy. They know that. They aren't even trying to stop piracy with it (obviously since the Sony DRM can be "circumvented" with an advanced underground cracker tool known as a Macintosh). They are trying to create a second-third-and-fourth sale market for their products. Since they are putting out so much utter crap they now need to sell their few gems more than once to still turn the profit margins their shareholders have come to expect.
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Topic: OT - Ripping to computer/portable device not fair use? RIAA says no! (Read 4947 times)