Washington Post sticks by RIAA story despite evidence it goofed

It's late on Wednesday evening and the Washington Post has yet to correct a story that accused the recording industry of trying to paint law-abiding music fans as criminals.

But the paper should make things right and soon.

Marc Fisher, a Post columnist, wrote on Sunday that the Recording Industry Association of America (RIAA) asserted in a legal brief that anyone who copies music from a CD onto their computer is a thief. The document, filed last month, was part of the RIAA's copyright suit against Jeffrey Howell, an Arizona resident accused of illegal file sharing.

Quoting from the brief, Fisher wrote that the RIAA had argued that MP3 files created from legally bought CDs are "unauthorized copies" and violate the law. If it were true, the move would represent a major shift in strategy by the RIAA, which typically hasn't challenged an individual's right to copy CDs for personal use.

The problem with the Fisher's story is that nowhere in the RIAA's brief does the group call someone a criminal for simply copying music onto a computer. Throughout the 21-page brief, the recording industry defines what it considers to be illegal behavior and it boils down to this: creating digital recordings from CDs and then uploading them to file-sharing networks.

A sentence on page 15 of the brief clearly spells out the RIAA's position: "Once (Howell) converted plaintiff's recording into the compressed MP3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiff." "Rather than suing its customers and slamming reporters, the RIAA might better spend its energies focusing on winning back the trust of an alienated consumer base." --Marc Fisher, columnist

The key words there are "shared folder" and it's an important distinction. It means that before the RIAA considers someone a criminal, a person has to at least appear to be distributing music.

The Post story, which followed similar pieces in Ars Technica and Wired.com, has spurred scores of other media outlets to repeat the paper's erroneous assertion. Ironically, even typically anti-RIAA blogs, such as Engadget, Gizmodo and TechDirt have jumped in on the side of the RIAA.

"The Washington Post story is wrong," said Jonathan Lamy, an RIAA spokesman. "As numerous commentators have since discovered after taking the time to read our brief, the record companies did not allege that ripping a lawfully acquired CD to a computer or transferring a copy to an MP3 player is infringement. This case is about the illegal distribution of copyrighted songs on a peer-to-peer network, not making copies of legally acquired music for personal use."

After reading Lamy's statement, Fisher didn't back down.

He responded in an e-mail to CNET News.com: "The bottom line is that there is a disconnect between RIAA's publicly stated policy that making a personal copy of a CD is ok and the theory advanced by its lawyers that in fact, transferring music to your computer is an unauthorized act."

He took one more shot before signing off: "Rather than suing its customers and slamming reporters, the RIAA might better spend its energies focusing on winning back the trust of an alienated consumer base."

Still, Fisher received little support from respected and independent copyright experts. William Patry, the copyright guru at Google--not exactly known as a lackey for copyright holders--wrote on his blog that the RIAA is being "unfairly maligned" in the Post story.

Patry does, however, caution that recent statements made by the RIAA and included in Fisher's story reflect the group's growing tendency to use language as a means of control.

Fisher quoted Sony BMG's chief of litigation, Jennifer Pariser, who testified recently in court that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song."

Patry disagreed.

"This new rhetoric of 'everything anyone does without (RIAA) permission is stealing' is well worth noting and well worth challenging at every occasion," Patry wrote. "It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief."

Greg Sandoval is a former Washington Post staff writer.