Fred von Lehmann recently reported on the EFF site that the RIAA no longer necessarily considers ripping CDs that you've purchased to your iPod "fair use," and raises questions about the practical implications of this shiny, brand spankin' new extension of their blinkered mindset.

t is no secret that the entertainment oligopolists are not happy about space-shifting and format-shifting. But surely ripping your own CDs to your own iPod passes muster, right? In fact, didn't they admit as much in front of the Supreme Court during the MGM v. Grokster argument last year?

Apparently not.

As part of the on-going DMCA rule-making proceedings, the RIAA and other copyright industry associations submitted a filing that included this gem as part of their argument that space-shifting and format-shifting do not count as noninfringing uses, even when you are talking about making copies of your own CDs:

"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 MGM v. Grokster case is simply a statement about authorization, not about fair use."

So, only by the benevolent grace of the powers that be can you copy CDs to your iPod - they'd like to kindly reserve the right to knock down your door, guns blazing, if they're feeling saucey and want to come after you for your immoral choice to format-shift - to USE that item that you OWN.

von Lehmann calls BS on RIAA lawyer Don Verilli for his conflicting statement made to the Supreme Court last year, which apparently gives consumers a bit too much leeway.

For those who may not remember, here's what Don Verrilli said to the Supreme Court last year:

"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."

Apparently, they've changed their tune - could it be that while a year ago it was perfectly lawful, it's now become imperfectly lawful? von Lehmann explores the implications of this brilliant business move:

If I understand what the RIAA is saying, "perfectly lawful" means "lawful until we change our mind." So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of their sufferance. What about all the indie label CDs? Do you have to ask each of them for permission before ripping your CDs? And what about all the major label artists who control their own copyrights? Do we all need to ask them, as well?

P.S.: The same filing also had this to say: "Similarly, creating a back-up copy of a music CD is not a non-infringing use...."

There are, of course, the questions that von Lehmann raises - if the RIAA's newest anti-technology opinion were to be written in stone, what would that mean for people who wanted to use their iPods? What contortions would consumers need to go through to remain on the right side of the law? Could anything short of a complete, corporate owned and operated panopticon be able to facilitate keeping the evil, vicious, iPod owning consumer in check? But I digress, lest I invoke Godwin's Law in my analysis of the potential impact of the RIAA's policy.

But the big shocker, for me, is that the RIAA seems to be spitting in Steve Jobs's face on this one. Digital downloads aside, the idea of attempting to further decrease the functionality of the iPod doesn't just sound like anti-consumer, tech-phobic rhetoric (though believe me, it is,) it smacks of hubris. The David/Goliath (consumers/RIAA) analogy seems insufficient in light of this - a more adequate description may be found in the episode of The Twilight Zone where an astronaut enslaves a race of tiny people on a planet he's crash-landed on (much to the chagrin of his more morally upright buddy) only to find himself equally (and with classic Serlingian irony) enslaved by another race of inhabitants of the planet, much larger than him, by the end of the episode. Can you follow that? Basically, I'm wondering if the big guys are gearing up to go head-to-head with the super-big guys, and if so, what they're thinking.

(Note: They're probably thinking - "protect our outdated business model by any means necessary, despite any logic or business sense that might encourage us to act otherwise.")