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Fair use? Are you sure?

A Washington Story accusing the RIAA of going after individuals making copies of their songs for drew drew some ire, but turned out to be inaccurate. Even so, the doctrine of fair use isn't as clear as you might think.

On Sunday, the Washington Post published a story which suggested the RIAA is expanding its copyright-infringement lawsuits against end-users to encompass files ripped from an audio CD to a user's hard drive. In other words, most of the files on the 100+million iPods sold, not to mention the countless files on computer hard drives and other devices. A lot of readers took the story at face value, and expressed dismay that the RIAA would target such copying for personal use. Isn't that fair use?

Turns out that the story's wrong: as the Patry Copyright Blog(and others) point out, if you read the full legal brief, you'll see that the RIAA's objecting to two things in combination: the fact that the user converted the CD audio to MP3 files, AND the fact that the user put these files in a folder to make them available to a file-trading service. So this actually appears to be the "making available" argument, which the RIAA used successfully in the only file-trading case it's won against an individual (so far).

But even if the story were correct, why is everybody so quick to assume that making a copy of an audio CD onto a hard drive is fair use? The doctrine of fair use is far from clear-cut. For example, there's been enough case law on parody that it's generally deemed to be covered by fair use. But the issue of making personal backups of digital data is still the subject of significant debate. And the recording industry has been fairly consistent in arguing that ripping MP3s is making an unauthorized copy.

The point: just because something's technically easy, widely accepted, and seems "right," that doesn't mean it's legal. That said, I believe the RIAA's tactic of suing customers is heavy-handed and will do more harm than good to the long-term health of the recording industry.

For more about fair use, Stanford University has an excellent overview.