RIAA: Burning CDs to MP3s is not fair use

Every three years, the U.S. Copyright Office accepts comments on the Digital Millennium Copyright Act (DMCA) for additional rule-making and exemptions. The Electronic Frontier Foundation (EFF) has given up on participating in the process, which they consider too broken to be worthwhile--consumer interests are simply not taken into consideration.

The RIAA's most recent filing (PDF) in this process shows that they've reversed their position since testifying before the Supreme Court last November in the MGM v. Grokster case, when attorney Don Verrilli stated (PDF, p. 12):

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, upload it onto your computer, put it onto your iPod.

The RIAA's position in the new filing (PDF, p. 22 footnote 46) is:

Nor does the fact that permission to make a copy in particular circumstances is often or even "routinely" granted, [...] necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright owners in the Grokster case is simply a statement about authorization, not about fair use.

That is, they are claiming that they've given permission for such use, and have the right to take it away at any time, because it is not a matter of fair use. The filing points out that this is the 2003 position of the Register of Copyrights, who is quoted (p.22):

proponents have not established that space-shifting or platform-shifting is a noninfringing use.

On the same page (22), the filing states:

Similarly, creating a back-up copy of a music CD is not a non-infringing use....

(Somewhat less information may be found at the EFF's blog entry which pointed me to this filing, Deep Links.)