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The blogosphere is alive over the last few days with reports that the RIAA are saying that format shifting copying, like copying music from a legitimately-purchased CD onto your iPod, is not fair use. This appears to be inconsistent with their previously stated position – and of course, what is interesting for us here in Australia is, what implications does this have for the Fair Use Inquiry?

In the past, the RIAA has said:

1. the position on their website (and still on their website) that ‘If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that’s great. It’s your music and we want you to enjoy it at home, at work, in the car and on the jogging trail’
2. the position taken in the Grokster hearings, where the RIAA lawyer said that ‘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 shift can be found in a filing in the current DMCA Rule-Making (on creating exceptions to the DMCA ban on circumvention of access controls), where they have said this:

“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. In this regard, the statement attributed to counsel for copyright owners in the MGM v. Grokster case is simply a statement about authorization, not about fair use.”

Some might say this isn’t actually a shift in position. The statements above both say that ripping to your MP3 player is lawful, not that it is fair use. It could be that their position was that such uses were impliedly licensed – not that they were fair.

But let’s unpack that a little. Think about the implications of not calling this licensed use and not fair use. In the Grokster case, Verelli was answering a question as to whether the copyright owners’ argument would make the iPod illegal. Ripping CDs to the iPod was cited as the non-infringing use that took the iPod out of danger territory. But if ripping CDs is licensed use, and the ‘license’ can be ‘revoked’, then whether the iPod has a significant non-infringing use – and hence whether it is legal or skirts the borders of what is allowed – depends on the whim of the copyright owners. That would be a strange result indeed. Necessarily, I think you have to conclude, the RIAA are being inconsistent.

As usual, my question is – is this at all significant for Australia? Well, on one level, the timing couldn’t be worse. The Fair Use Inquiry is still ongoing – the Attorney-General has not yet announced what, if any new exceptions will be created for private copying. But the Attorney-General has been out there saying that copyright law should not be more restrictive on users in Australia than in the US. It therefore matters what the law is, or is perceived to be, in the US. In the past, I’ve commented on the difference between the (apparent) RIAA view, and the ARIA view, on what is allowed, as being reason to change Australian law to allow format-shifting. Some might see this RIAA view as undercutting an argument that format-shifting should be allowed in Australia.

In my view, that would not be the right conclusion to draw. Most obviously, regardless of what the US say or do, the law is still an ass in this area in Australia (see also my paper on this). Something does need to be done or the law will continue to be the subject of disrespect and disbelief – which is not a good thing if you believe in copyright.

Second, I’m not at all convinced that the RIAA would be right about this not being fair use. The use is, after all, non-commercial. It may not be transformative. But most importantly, I’m not convinced that it interferes with the copyright owner’s market. When a user buys a CD, the fact that they can rip it to an MP3 player, and listen to it even when they can’t carry the CD around, increases the value of that CD to the user – and increase the price they are willing to pay for the CD (as well as increasing the likelihood they will buy CDs). So presumably the record company gets some value from the space shifting. Surely you cannot assume that copyright owners have a right to get paid twice for the same work?

Third, and this is particularly important from an Australian perspective, the RIAA shift – whether this is an actual shift, or whether they are trying to qualify the ‘license’ they give for this activity – underlines the need for an actual exception to be inserted into the statute legitimising format-shifting. Over time, the RIAA line, and the wide availability of iPods, have created a pretty strong expectation on the part of users that they will be able to format shift. It has also encouraged a growth in devices that can be used to make music portable. I’m not sure that it’s legit to suddenly ‘revoke’ that, on a whim. Certainty is important – both to users, who invest in equipment and digital media, and the makers of digital equipment.

Update: I should also have noted that the same filing also had this to say: “Similarly, creating a back-up copy of a music CD is not a non-infringing use….”. Bah, humbug.