RIAA pres Cary Sherman (see Blogcritics interview here) responds to Consumer Electronics Association CEO Gary Shapiro's commentary in CNET on downloads and copyright from last month:

Last month, Consumer Electronics Association CEO Gary Shapiro took the debate over peer-to-peer file sharing to a new level. In brief, he declared that downloading off the Web is neither illegal nor immoral.
This pronouncement--given in a speech at the Optical Storage Symposium and echoed in condensed fashion in a commentary on CNET's News.com--is breathtaking, both because it is so blatantly wrong and because the arguments Shapiro advances in an attempt to justify his conclusions are so transparently specious. Nonetheless, it deserves a response, because people need to know that Shapiro's proclamation, if not a deliberate and outright attempt to misinform, amounts at best to wishful thinking.

Certainly, there is nothing wrong with downloading per se. In fact, record companies and legitimate online music companies are aggressively promoting downloading as a fabulous way to get more music to more consumers. There is, however, a real problem with the unauthorized downloading of copyrighted material, both legally and morally.


"Despite the assertions of the Justice Department," Shapiro claims, "downloading is not illegal." Actually, it's not "the assertions of the Justice Department" that makes unauthorized downloading illegal. It's Title 17 of the United States Code, which prohibits the unauthorized reproduction, distribution, or digital transmission of copyrighted material.

It's also a long line of decisions interpreting that statutory provision, in court after court, in case after case. There is simply no doubt that copying and/or distributing copyrighted material on peer-to-peer file-sharing systems without the permission of the copyright holder is illegal, and Shapiro's preference that the law were otherwise does not make it so.

In an effort to overcome this rather problematic detail, Shapiro turns to the old standby, "fair use rights." While he doesn't explain exactly what these "rights" would permit, he makes it sound as if copyright owners are against fair use, and implies that fair use allows consumers to download anything they want. In fact, copyright owners rely on the fair use doctrine as much as (if not more than) anyone, because so much of what is created may be derivative of another's art.

So, we all respect and support fair use. But can fair use justify the uploading and downloading between anonymous strangers of entire copyrighted works of entertainment? No way.

That card has already been played in a number of file-sharing cases, and the courts have specifically rejected it. As U.S. District Court Judge Marvin E. Aspen ruled just last month in the Aimster case, the idea that "the ongoing, massive, and unauthorized distribution and copying of copyrighted works somehow constitutes 'personal use' is specious and unsupported."

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