In view of the tempest in a teapot created by Cary Sherman of the RIAA (apparently in response to a negative Motley Fool article and a drop in record company stock prices), in denying that the RIAA's lawyers meant what they said in their supplemental brief in Atlantic v. Howell, and his claim that Marc Fisher's excellent Washington Post article misinterpreted the statement in the brief, we thought it might be helpful to post the actual order of the court, which asked the question to which the RIAA was responding, and to post the actual answer to the question.
The October 3, 2007, order of the court, which asked the parties to brief 4 questions, is now available online.
This is the order which raised the question:
Does the record in this case show that defendant Howell possessed an “unlawful copy” of the plaintiff’s copyrighted material...?"to which the RIAA lawyers responded:
It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. (SOF, Doc. No. 31, at ¶¶ 4-6); Exhibit 12 to SOF at ¶¶ 13, 17-18.) Virtually all of the sound recordings on Exhibit B are in the “.mp3” format. (Exhibit 10 to SOF, showing virtually all audio files with the “.mp3” extension.) Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. (Howell Dep. 107:24 to 110:2; 114:1 to 116:16). The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.” Napster, 239 F.3d at 1011. Once 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.October 3, 2007, Directing Briefing of 4 Questions*
* Document published online at Internet Law & Regulation
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