RIAA: we love fair use. No, really!

The RIAA is a true champion of fair use. That's what RIAA president Cary Sherman wants you to believe. In an op-ed piece published by Cnet, Sherman champions the RIAA's unique understanding of fair use while taking digs at those who do not share the record industry's vision—like the Consumer Electronics Association.

Sherman describes fair use as "an undeniably important plank of copyright law," saying that it is "in danger of losing its meaning." He goes on to note that fair use is intended for criticism, comment, news reporting, and scholarship, saying that "it is certainly not an excuse to boost the sales of electronic devices and services on the backs of hard-working creators."

Digital Freedom

His target is the CEA and its Digital Freedom campaign. The CEA launched Digital Freedom a couple of months ago as a counterweight to the RIAA's campaigning for increased DRM, including a broadcast flag for both television and radio. According to Digital Freedom, fair use rights are "under attack by the big recording labels and studios, who would ultimately deprive individuals of the right to communicate using digital technology."

Sherman accuses the CEA of staking their case "out of the mainstream" and asserts that the CEA's primary worry is their bottom line, not consumers' rights. It's OK to make a profit, Sherman says, "But to seize the mantra of 'consumer rights' to advance that business interest is simply disingenuous. And to do it at the expense of creators' right to be compensated for their work is short-sighted."

Saying that the CEA and the Digital Freedom campaign are lobbying to keep artists from being paid for their work is disingenuous too. What the CEA is opposed to are mandates such as the INDUCE Act. Introduced to the Senate in 2004, the INDUCE Act would have held manufacturers liable for the creation of any device that "aids, abets, induces, counsels, or procures" users into the realm of copyright infringement. The bill never made it out of in committee, but the recording and motion picture industries remain hard at work crafting legislation that would seriously limit the ability of consumers to enjoy content when and where they wish.

Some of Sherman's other assertions are troubling, if not outright false. He refers to Digital Freedom's assertion that the goal of the "big labels and studios" is to "outlaw new digital technology and devices that allow individuals to enjoy digital music and videos at a convenient time and place." Sherman calls this "knowingly false and incendiary rhetoric," but his statement flies in the face of the RIAA's history. If we turn our way-back machine to August 2004, we see the RIAA supporting XM Radio's decision to fight Time Trax, a time-shifting application for XM Radio. At the time, an RIAA spokesperson said that the group was "very concerned about a variety of technologies that essentially transform performances into music libraries."

What fair use?

It's downright odd to see the RIAA's president positioning his organization as the champions of fair use. After all, this is the same group that nine months ago filed a brief with the US Copyright Office saying that making backups of one's own lawfully purchased CDs might not fall under the category of fair use. Neither is ripping them for use on a PC or iPod. "Similarly, creating a back-up copy of a music CD is not a non-infringing use, for reasons similar to those the Register canvassed in detail in her 2003 determination that back-up copying of DVDs cannot be treated as noninfringing," said the RIAA's submission to the Copyright Office. The RIAA has also backed copyright legislation that would toughen the DMCA.

Despite his quoting from section 107 of the Copyright Act, it's apparent that Sherman's vision—and that of the recording industry—differs from the historical understanding of fair use. The consumer's best interests—being able to lawfully consume the content they purchased in the time, place, and manner of their choosing—go unacknowledged in the RIAA's vision of fair use. Instead, the record labels and movie studios would have us pay multiple times for the same content. If Sherman is going to appeal to "fairness," which he says "requires us to look in all directions and to hear from all sides," then that must include consumers and not just his list of songwriters, musicians, artists, producers, engineers, promoters, and label employees.