PRESENTING A BALANCED VIEW OF OPPOSING LEGAL ARGUMENTS
by Serona Elton

You may be aware of the recent story reported in the Washington Post on December 30, 2007, with the headline, “Download Uproar: Record Industry Goes After Personal Use,” indicating that the RIAA was arguing that it was “illegal for someone who has legally purchased a CD to transfer that music into his computer.” What you may not know is the story turned out to be false.

On January 5, 2008, the Washington Post printed a correction, indicating that actually the RIAA was arguing that it was illegal for someone who legally purchased a CD to transfer that music into a folder on his computer that was shared between his computer and a peer-to-peer network.

The correction got significantly less press than the first story containing the mistake. The first story’s assertions were repeated by many media outlets. (I personally received several emails from students and colleagues citing the story.) The correction was not. The original story did not merely contain a single mistake, rather an entire misinterpretation of the RIAA’s legal brief. The correction was embedded within a list of other corrections, hardly grabbing the attention that the first story garnered. One might argue that an existing bias by the media against the RIAA contributed to the misinterpretation in the first place. As the saying goes, “everyone loves a villain.”

For those who wish to be accurately informed, a copy of the legal brief filed by the RIAA can be found at http://www.ilrweb.com/

The above referenced document is twenty-one pages long. About two thirds of the way into the document, the RIAA makes an argument which is likely at the heart of the mistake in the original Post story.

The argument was that the “Defendant possessed unauthorized copies of the Plaintiff’s copyrighted sound recordings on his computer and actually disseminated such unauthorized copies over the KaZaA peer-to-peer network.” In support of this argument, the brief goes on to say that the “Defendant admitted that he converted sound recordings from their original format to the .mp3 format for his and his wife’s use….Once Defendant converted Plaintiff’s recording into the compressed .mp3 format and they are in his shared folder [emphasis added], they are no longer the authorized copies distributed by the Plaintiffs.” The crux of this argument is the fact that the files were stored in a folder shared with other users of the KaZaA network, not that they were simply converted to files on the Defendant’s computer.

Overwhelmingly, the press portrays the RIAA and the record companies it represents in a negative light. Yet, the courts overwhelmingly continue to support the arguments of the RIAA, based on sound Copyright Law. Are the press right and the courts wrong? How many times throughout history has the law protected rights that the general public would otherwise support violating? And yet it seems that I continually find myself in a minority of individuals defending the position of the RIAA.

Consider this a plea from one music industry educator to another: Encourage your students to research all of the various arguments made in these cases; require them to read the opinions of the courts; suggest that they not simply follow public opinion as they are fortunate to possess a greater understanding of the issues disputed than the general public.

In summary, resist the urge to teach only one side of the argument regardless of your personal views. Rather, teach that the best advocate for any legal position is one who completely understands the opposing position and can make compelling legal, rather than emotional or philosophical, arguments against it. The result will be students who are better able to shape the music industry of our future.

Serona Elton is an Assistant Professor at the University of Miami’s Frost School of Music, in the Music Business and Entertainment Industry Program. Previously, she was the Vice-President, Mechanical Licensing and Repertoire Data Services for EMI Recorded Music, North America. She is also a licensed attorney in New York and Florida.