So You’re an Attorney; Tell Me: Can I Backup My CDs Without Being Sued?
By: Eliyahu R. Babad
A questioner (himself an attorney) recently posed this query to the copyright panel of the Fordham Intellectual Property Symposium. The distinguished panel of three law professors and the principal legal advisor from the Copyright Office i at best offered a qualified “perhaps”. So what is the real deal?
The crux of this issue lies possibly with the Recording Industry of America (RIAA) and how they view it; as they have been at the forefront of these suits and are the most vocal voice in the cacophony calling for copyright enforcement. Perhaps the most notorious, though not the only, verdict in such a suit was the jury award of $222,000 against a woman from Montana.ii This has, for better or worse, scared even veteran copyright attorneys as well as the average American who are unsure of what penalties they may face for using their music in the wrong way.
The RIAA used to say that that any copying of copyrighted music onto your personal computer was infringement.iii It did not matter why or for what purposes you were making the copy. They felt that if you bought a CD, you bought the rights to just that and no backups. Somewhere along the way they changed their position.
The RIAA now states on their website that the record companied have “never” objected to copies for personal use.iv While this might seem a bold-faced lie in light of their prior position, this claim seems sometimes adjusted to reflect reality. In oral argument in front of the Supreme Court in the Grokster casev plaintiff’s counsel stated it differently. He said only that “for some time now” the RIAA’s position has been that a copy for personal use is “perfectly lawful.vi
So the case would seem to be settled that it is permitted to make a backup of your personal CD collection. But the RIAA started singing, once again, a conflicting tune. While their website might make it clear that they have no problem with personal backups of music, a link on the same page where they make that proclamation seems to advise otherwise. On the linked page, by Music United called The Law, it states that if a person makes unauthorized copies, it’s stealing.vii
Further confusing the situation is the RIAA brief in Atlantic Recording Corp. v. Howell.viii The RIAA’s position there seems directly contrary to its counsel’s statements in Grokster. The brief states that “[o]nce 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.”ix There has been much controversy surrounding the true meaning of this statement and whether the RIAA was only referring to files specifically placed in the shared folder. Either way, it has only added to the controversy and uncertainty. A column in the Washington Post stated that, based on this statement, that the RIAA felt that it was illegal to make backups of CDs.x The Post, however, subsequently corrected it when urged by the RIAA that the language was specifically referring to files uploaded in the “shared folder”.
In reply comments to proposed rules from the U.S. Copyright Office, the RIAA as one of the authors stated “creating a back-up copy of a music CD is not a non-infringing use”.xi Once again, the recording industry is fairly clearly stating that the RIAA takes the position that it is illegal to make these back-ups of your own CDs.
Despite all these conflicting signals, when speaking specifically on this topic (and when the RIAA is pressed on it they seem to agree) it is safe to say that the real answer to the question posed is a qualified yes—which is at least a step better than “perhaps”. Basically if you copy your own CDs for your personal use then the RIAA will not sue you for now. The caveats are that this does not account for suits by other parties and this answer works only for the time being. As we have seen before, the RIAA is liable to change its position in a music beat, and if you own copied CDs at that point then you might be playing the jailhouse rock.
iThe panel consisted of Diane Zimmerman – Professor, New York University School of Law; Robert Kasunic – Principal Legal Advisor, United States Copyright Office; and Brett Frischmann – Professor, Loyola University–Chicago School of Law and Visiting Associate Professor, Fordham University School of Law. The moderator was Hugh C. Hansen – Professor, Fordham University School of Law.
ii See Jeff Leeds, Labels Win Suit Against Song Sharer, N.Y. TIMES, Oct. 5, 2007, at C1.
iii Robert A. Starrett, Copying Music to CD: The Right, the Wrong, and the Law, EMEDIA PROF., Feb. 1998 (available at http://findarticles.com/p/articles/mi_m0FXG/is_n2_v11/ai_20179371) (last visited Mar. 2, 2008) (“According to Cary Sherman, the senior executive vice president and general counsel, the RIAA takes the position that any copying of music to CD that you perform on your computer is copyright infringement.”).
iv RIAA, For Students Doing Reports, http://riaa.com/faq.php (last visited Feb. 28, 2008) (“Record companies have never objected to someone making a copy of a CD for their own personal use.”).
v Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
vi Oral Argument at 14, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (“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, [and] upload it onto your computer”) (No. 04-480), 2005 WL 832356
vii MusicUnited.org, The Law (“If you make unauthorized copies of copyrighted music recordings, you’re stealing.” (link followed from RIAA website http://riaa.com/faq.php (last visited Feb. 28, 2008)) (last visited Feb. 28 2008).
viii Atl. Recording Corp. v. Howell, No. CV06-02076-PHX-NVW (Aug. 20, 2007, D.Ariz.), 2007 WL 2409549.
ix Id. Plaintiffs’ Supplemental Brief In Support Of Their Motion For Summary Judgment Pursuant To Court’s Order Of October 3, 2007, at 15.
x Marc Fisher, Download Uproar: Record Industry Goes After Personal Use, WASH. POST, Dec. 30, 2007 at M05.
xi AAP et al, JOINT REPLY COMMENTS, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Docket No. RM 2005-11 at 22 (2006) (the RIAA was one of the named authors of these comments submitted to the Untied States Copyright Office).