Can the RIAA Sue for Attempted Copyright Infringement?

The Atlantic vs Howell has just taken on a new twist. While the case brought everyone the now-famous claim that ‘CD ripping is illegal‘, now the RIAA is saying that people can be liable for attempted copyright infringement.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The EFF (Electronic Frontier Foundation) has announced that they are stepping in on the matter.

The Atlantic v. Howell case is fast becoming one of the most watched cases in the file-sharing world – if it hasn’t already. In court documents, the RIAA said:

Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.

Many have interpreted this as saying that this would cause (should this case be won) the act of ripping a CD illegal. One source got a response from an RIAA spokesperson, saying that this was not the case, but many including the EFF are not buying it. The EFF took the following quote:

It’s OK to copy music onto an analog cassette (not for commercial purposes), it’s OK to copy music onto special audio CD-Rs, minidisks and digital tapes (but again not for commercial purposes). Beyond that there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R, but burning a copy onto a CD-R or transferring a copy onto a computer hard drive or 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.

…and interpreted it as this:

we think that making copies for personal use is illegal, we just haven’t sued anyone for it yet.

While debate rages on over whether the RIAA really says that the act of ripping a CD is illegal or if it was a misconception through one form or another, the latest to come from the case is whether even attempting copyright infringement can bring liablility charges/damages.

The EFF described the RIAAs argument with the following:

As in more than 20,000 other lawsuits, the recording industry claims that Mr. and Mrs. Howell committed copyright infringement by using P2P file sharing software (in this case, Kazaa). But rather than going to the trouble of proving that the Howells made any infringing copies (by ripping CDs or downloading songs) or any infringing distributions (by uploading to other Kazaa users), the record labels argue that simply having a song in a shared folder, even if no one ever downloaded it from you (i.e., “making available”), infringes the distribution right. This essentially amounts to suing someone for attempted distribution, something the Copyright Act has never recognized

Last year, the Department of Justice tried putting in a bill which would hold people liable for even attempting to “infringe copyrights”, but the attempt failed.

The EFF sites related cases which failed. The two they cite were the RIAA vs. Napster case and the Google vs. Perfect 10 case (PDF)

It seems that precedent is on the EFFs side, but the fear is that if the RIAA wins this case, a very bad precedent would be set for future lawsuits within the United States.

Drew Wilson on Twitter: @icecube85 and Google+.

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