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Quote from the DMCA found here

6. Security testing (section 1201(j)). This exception permits circumvention
of access control measures, and the development of technological
means for such circumvention, for the purpose of testing the security
of a computer, computer system or computer network, with the
authorization of its owner or operator.

Now that to me implies that circumventing the control measure represented by an ad-blocker, without the authorization of its owner, would violate the DMCA. That little snip is from page 6 of the pdf file.

WHAT IS COPYRIGHT?

Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

* To reproduce the work in copies or phonorecords;

* To prepare derivative works based upon the work;

* To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

* To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

* To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

* In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, request Circular 40, "Copyright Registration for Works of the Visual Arts."

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of "fair use," which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.

"Actually, part of getting the protections that copyright offers legally means ensuring the rights of valid, legal use. I want the protections of copyright, then I have to abide by fair use policies."

Interesting, I've never heard that before. Are you referring to US copyright law? Do you have a citation for that?

Does this apply to all media? For example, if I release a game with copy protection or print a leaflet on non-copyable paper, is my copyright invalid?

S 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.[emphasis mine]

The way the copyright law in the US reads would tend to support that position. You can't copyright information/facts/data. You can copyright the presentation of such information, but not the facts themselves. So if I have a receipe for BBQ sause I can't copyright the list of ingredients or how it's prepared. I can copyright the book it's in with whatever other commentary there is, but the receipe itself isn't protected under copyright law.
http://www.copyright.gov/help/faq/faq-protect.html

How does that apply to sharing music? I don't think it does, just pointing out a detail in copyright law.

What constitues a violation is everything else (as seen here).

"P2P is used by consumers isn't it?"

Technically, no. If you are not sharing it could be argued that you are consuming. However, if you are sharing then you are distributing. Distribution, regardless of form or price is either covered under manufacture or broadcast (section b and continued in the link above).

Finally, the parent poster is trying to invalidate the value of right to copy based on the innocuous fact that the copyright is not property. However, according to the law value is explicitly protected (see chapters 8 and 10 regarding royalties and royalty dispersement).

17 USC 106:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

However, The second part ("making a cassette tape...") is cited in the following exclusion:
1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Where P2P becomes an issue is in the distribution of said copyright to an audience that is obviously not personal in nature. Giving to a friend, meaning one, is personal. Giving to 2 friends could fall under distribution and/or manufacture. That's a whole different ball-game, not covered by the above exclusion.

...each file is a digital copy from a CD which I own.

If that's the case then there's no reason to argue. You, in fact, did pay for those songs. The fact that you make personal copies falls under the following exclusion of even US copyright law:
USC Chapter 10, Section 1008.

Private, noncommercial use is protected (no problem). However nothing about P2P networking is private. If it were, then the RIAA would not be able to find out who's sharing and downloading. The last point is only to emphasise why P2P is not private, not to emphasise the general lawfullness of things done in privacy.

There is no constitutional/US code details to fair use and copyright coverage or duration. The Fair Use provisions are as detailed as they get.

That doesn't stop certain groups from coming up with insanely detailed rules (interlibrary loan guidelines, for example, involve things like the lesser of one chapter or 10% of a written work if requested less than 5 times a year unless the work is over 5 years old etc. etc.) that have no real legal foundation.

"You cannot lok at information as property..."

Further:

"...ideals of copyright...emphatically NOT a grant of property."

Bringing up arguments about eighteenth century "right to publish" is bogus. The first amendment automatically protects your right to publish. It even protects your right to parody a copyright work (although not to gain financially from such parody). As a previous post already said, Whatever helps you sleep at night .

"Making an MP3 of a small portion of a song to use as an example of that song is also fair use (in the more traditional sense). In fact, making a cassette tape of a CD and giving it to someone you know (without money exchaning hands) is also fair use."

Do you have a citation for this? Are these covered in copyright law, or are they more in the realm of not needing backup because everybody knows they're true?

Googling on "fair use music" gives me the following:

http://www.musiclibraryassoc.org/Copyright/guidemu s.htm

http://www.serve.com/marbeth/music_fair_use.html

http://www.pdinfo.com/fairuse.htm states: "We have attempted to do find specific details and examples of Fair Use of music. The rumors that it is OK to use so many notes or so many bars are just not true. There is little doubt that, other than private in-home listening and playing, Fair Use of music is extremely limited."

http://www.eff.org/cafe/gross1.html states that one can make a "mix tape" for one's own personal enjoyment (their words). There's nothing on the EFF page which gives one blanket authorization to make a copy of a CD and give it to a friend, whether cash is exchanged or not. Nor in this article, which was written by a lawyer.

A common point found in many articles I've read is the impact on the market. If the copying is done to avoid buying another copy, then it's not fair use. While making a copy of a CD for a friend -- cassette, MD, DAT, CD or otherwise -- might be solely so he can "sample" it or "try before he buys" or "evaluate it for consideration of purchasing it," in most cases it's not -- you are making a copy for a friend because he'd rather get a copy from you for free than to buy his own. Not a huge crime -- but not fair use.

"You can share a CD you own."

That much I understand. If I have a CD, I can loan it to a friend. If he makes a copy of it, he's in violation of the law, but that's largely irrelevant to the act of me loaning him my CD.

"You can share an analog copy of a CD you own, but only with "friends", and you can't do it for commercial gain. You can't make a digital copy of a CD and share it without seriously risking infringment."

This is where I get lost. Can somebody please point me to the section of US copyright law which spells this out? I understand the part of the law about libraries and similar institutions being allowed to make copies for archival purposes, but I can't find anything that relates one way or another to making copies and giving them to friends.

Check out the first hit Google came up with. Take a good look at the title. :)

Is it really?

(You can Google Eldred v. Ashcroft for html, but the pdfs are much easier to read.)

(You can Google Eldred v. Ashcroft for html, but the pdfs are much easier to read.)

"That's exactly the problem with CD distribution in the first place! They still want me to believe I need to spend over $ 16 bucks on a disc that I know damn well cost them only $ 0.40 to manufacture and distro. Even with a couple bucks to the artist and the studio, it's overpriced."

To clarify, CDs are sold to distributors for about $8. Anything beyond that goes to the distributor and the retailer. I know, I know -- thus they are surely evil greedy fucktards, etc. -- but many if not most products we buy go through similar two-tier sales channels.

Of the eight bucks or so that the record company collects, the manufacturing fees are among the least significant of the costs. Among others:

1. Artist royalties
2. Salaries for the people involved in producing the CD. A CD is not the work solely of singer or a band, but session musicians, backing vocalists, producers, and engineers. Additionally, CDs, like virtually all other consumer goods, must be sold and marketed, and sales and marketing staffs are salaried, not volunteer, positions.
3. Allowances for returns from vendors -- if one in ten CDs ultimately gets returned by the store, that's about $0.80 of the cost of sale.
4. Channel promotions, co-op ads, promotional copies, and all the other sorts of things that are associated with manufacturing, selling and marketing a consumer good in today's society.

The bottom line is that CDs have a net margin of 30% or less, which is far lower than many other things we buy regularly, such as clothing, groceries, computer peripherals, and software. A CD released by a major label typically requires sales of a million units before it breaks even; the indies (which have much smaller promotion budgets but also typically sell fewer CDs) must sell about 100K.

"I like to be able to take even my legitimately purchased music and reduce it to the set of what *I* want to listen to. Isn't that my right as a consumer?"

If you're curious as to your rights when downloading music from iTMS, check out the fine print on the iTunes store.

Many people discuss "fair use rights" with the understanding that there is a list of activities that rightsholders are not allowed to prevent. This is not the case. Fair use doctrine is a loose list of instances in which you can make a copy of somebody else's work without running afoul of the law. Many of these relate to educational purposes. For example, you could occasionally Xerox a page from a magazine and distribute it to your class without fear of being hauled off to court, but this does not supercede a magazine publisher's right to, say, print a magazine using special ink and paper that cannot be Xeroxed.

You have forgotten fair use. For example, the Supreme Court ruled that it is part of fair use for me to timeshift a television program.

First, regarding fair use. Fair use is not a right. Fair use is not an entitlement. Allow me to quote US Title 17, section 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism... [list of fair uses] ... is not an infringement of copyright. [Emphasis added]

Now, maybe fair use should be a protected right, but it isn't. And pretending it is doesn't help.

You also said:

My GPL software is protected from being co-opted by commercial abusers by copyright law, not by technical measures. If it ever came down to me suing for copyright infringement, the truth is guaranteed to come out through discovery. There is no technical measure necessary or possible to protect my rights.

Well, those DVDs are protected by copyright law, too. But they're also protected by stupid DMCA-sanctioned technological measures. If you felt like creating some super DMCA protected GPL-DRM that went through and added GPL notices to every file in a project as soon as the linker saw your file, go for it. Just don't expect anybody to actually use it. Unfortunately, it's a bit late to use start touting DMCA protections as a reason to not buy DVDs.

S106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

>Think about it this way -- if one or two folks go into a store and shoplift, its a problem. BUT if they get caught, they get a light sentence. Now, what if hundreds went into stores and shoplifted as if it were institutional values?

They call it shoplifting when you physically remove an item without permission.

But when you walk into my shop, and then build one beside it that is identical in every way but the title, they say it's legal and that I have to tough it out.

If I were the RIAA, I'd be asking right now, what makes it legal to steal my ideas. But I'm not.

>Theft is theft.

It is. That's why when I download albums from Kazaa, I make sure I don't delete the uploader's copy. That way it isn't theft, in any sense whatsoever. (Legal, English, and common usage). In fact, in Canada, the right to download music freely is protected by law, that's how much it isn't theft.

For reference, "stealing" appears once in the US Copyright act, used to explain the act of removing a CD/phonograph/tape/whatever from your posession and use and making it my posession. Theft doesn't appear at all.

Also, the dictionary defines theft as:

\Theft\, n. [OE. thefte, AS. [thorn]i['e]f[eth]e, [thorn][=y]f[eth]e, [thorn]e['o]f[eth]e. See Thief.] 1. (Law) The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.

Note: To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief. See Larceny, and the Note under Robbery

The other definitions say the same thing, but are less clear unless you look up the used words, such as "larceny".

Personally, I believe that copyrights should expire in 14 years, as the US first intended, so that classic games would be public-domain by now. Pac-man should be as free as Chess

Both "MS. PAC-MAN" and "FIDE" are trademarks, but anybody can make a game whose object is to step on each space in a maze without infringing as long as isn't called "PAC-anything". Copyright applies only to the expression of a game, such as the specific layout of each maze and the graphics used to represent the characters. Even if Namco had thought to patent such gameplay methods, any U.S. patent on such gameplay will have expired, as patents in the U.S. and most other countries last only 20 years after filing.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner. blah blah

Interesting. Wondering myself what is involved, i went to the U.S. Copyright Office online.

I was pleased to see:

Literary Works
Register your book, manuscript, online work, pamphlet, poetry, report, test, automated database, computer program, or other text.

then, on the next page as step 1 of Literary Works, "Computer programs and databases also are considered literary works." however following at link of examples i found

"Computer Programs
A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

Copyright protection extends to all the copyrightable expression embodied in the computer program. Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts."

This lead me to a 4 page PDF File. It says what you need to submit and that it costs $30. It is a somewhat interesting read, but offers no explanation of what exactly is copyrightable if, as they previously said "Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts." That leaves me with nothing but comments, and *maybe* data structures. However data sctructures are nothing more than a layout of data in memory, or an idea encapsulating data layout.

I don't get it.

Interesting. Wondering myself what is involved, i went to the U.S. Copyright Office online.

I was pleased to see:

Literary Works
Register your book, manuscript, online work, pamphlet, poetry, report, test, automated database, computer program, or other text.

then, on the next page as step 1 of Literary Works, "Computer programs and databases also are considered literary works." however following at link of examples i found

"Computer Programs
A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

Copyright protection extends to all the copyrightable expression embodied in the computer program. Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts."

This lead me to a 4 page PDF File. It says what you need to submit and that it costs $30. It is a somewhat interesting read, but offers no explanation of what exactly is copyrightable if, as they previously said "Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts." That leaves me with nothing but comments, and *maybe* data structures. However data sctructures are nothing more than a layout of data in memory, or an idea encapsulating data layout.

I don't get it.

Want to prove that you created the work on a certain date? Mail it to yourself and don't open it.

The "poor man's copyright" is a myth - it is not legally binding in a US Court of Law - info on how to legally copyright your work.

>Twisting meaning
>and context to justify breaking the spirit of a law while supposedly
>not breaking the letter of the law makes you look stupid and foolish.

The law says "copyright infringement". NOT A SINGLE WORD OF COPYRIGHT LAW INCLUDES "THEFT" or "STEALING" . Don't believe me? Here it is. Use the search button and enjoy. The only instance that comes close is this single following one, and, guess what? It's used just like it is in the dictionary::

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if -- ...

By putting words into the mouths of lawmakers, you're pretending you're the supreme court. And if you're not, you make yourself look stupid, foolish, and probably leave yourself open to libel suits.

It's like saying I called you a "moron", despite the fact I haven't said that at all (read closely). You can't ASS-U-ME things. It's wrong, pathetic, and doesn't stand up in the court, and it doesn't stand up to my "truth test".

Stop acting like a spin-artist and read the damn law before you sponge off of the BSA's rhetoric.

The facts: The law isn't on your side on this; nor is the dictionary. Even English teachers aren't on your side. WHO IS?

"When I saw him speak, he pointed out that copyright was set up to encourage writers (and at first it was ONLY writers) to continuously work and release stuff out into the creative commons, where in a limited period of time (conservatively, more list 7 years instead of the lifetime of the artist) it would be released out to open for everyone to use freely."

To amplify the above, this happened in 1790, and books, maps and charts were the universe of items that could be copyrighted. The term was 14 years with the priveledge of renewing for another 14 years.

It wasn't until 1831 that musical works were added, to protect against unauthorized printing and selling of sheet music. The term was increased to 28 years at the same time.

Plays were added in 1856 and photos were added in 1865.

The complete history is here.

From here:
106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
*** (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and ***

In other words, any public display of a copyrighted picture is an infringement of the copyright if not done with the consent of the owner.

"It is quite easy for a musician to sell millions of albums and come out with a profit of around $50K. The actual financial benefit coming to an artist from an RIAA authorized CD is around $.05-$.25. The lions share of the rest of the $16-$20 goes streight to the RIAA with a small bit given to various middlemen."

Do you know of any CDs that have gone double platinum for which the artists have netted only $50K?

Artists' royalties are higher than you state. Mechanical royalties alone, when they apply, can be up to $0.70 per CD. Depending on the label (indies pay more), royalties can be between a buck and three bucks.

Believe it or not (and many people don't), the average selling price of a new release is down to $13.42 in the US. The sell-in price to the retailer is about eight or ten bucks. Anything beyond that eight or ten bucks is money that the record company doesn't see.

The difference between the artists' royalties and the sell-in cost does not go "directly to the RIAA." It pays for the engineering, production, duplication and distribution costs of the CD. It goes toward advertising and promotion. In short, it goes to salaries of all the people who are necessary to produce a CD. If the CD sells enough copies the record company will eventually make a net profit that will not immediately go to somebody's salary, but they're not required to pay a tithe to the RIAA.

By the way, major label records typically need to sell about a million copies of a CD before it breaks even. The indie labels, whose overhead is much lower, need to sell only about 100,000 pieces.

"I think that a "pay the musicians internet tax" is a very bad idea, as are taxes on blank media. The main reason is that a) under the current setup the money goes to the RIAA, not artists,"

It's a bit of a complex read, but US copyright law does clearly define who gets the money from the tariff on blank audio CDs. Most of it goes to artists and musicians. Some goes to record companies. None goes to the RIAA. By the way, that tariff is only on blank media and hardware sold expressly for audio recording. Stick to the regular blank CD-Rs and use a CD-RW drive instead of a Philips set-top CD burner, and you'll avoid the tariff.

"I do know this though: if we can find a way to get even $.50 to a band for every album downloaded they'd be making double what they make now."

Have you checked out the iTunes music store? The selection is reasonable, the DRM is easy to live with, and artists get a cut of each track downloaded. If you download an entire album, the artist will make about $1 - $3. This is an excellent deal for the artist compared to Kazaa, which pays the artist nothing.

Wrong.

Fair Use allows you _one_ copy

Show me where in copyright law it says that.

Note that clause 2 of paragraph 117 refers to the archival copies in the plural sense.

I have done a great deal of research on the topic of Fair Use

It doesn't really sound like it.

This is already causing quite a stir on one of the more prominant Zodiac message boards.

A few relevant issues: Since the recent DMCA exemptions created by the Library of Congress, Nintendo's claim that "You're not allowed to play roms you own," is only valid for the GBA, since the Gameboy and Gameboy Color are both legally considered obsolete.

At any rate, the patent only refers to emulators running on "limited capability devices" (Cell Phones, PDAs, and embedded entertainment centers), not to emulators running on desktop PCs. Further, it only covers the Gameboy family of systems: NES, SNES, Virtual Boy, N64, Game Cube and DS are not protected at all.

As for prior art, the patent was applied for in 2000, but wasn't granted until Jan. 6 2004, but the patent acknowledges prior art in its own phrasing:

"A number of GAME BOY.RTM. emulators have been written for a variety of different platforms ranging from personal digital assistants to personal computers. However, further improvements are possible and desirable."

Even more interesting is its mention of Aaron Giles' MAME patent.

One thing that really makes me scratch my head: I've known of people getting patents in a matter of months. Was this one constantly rejected over the course of those 4 years or something?

"For every piece of blank media, we have to pay a tax that goes directly to the RIAA."

Not correct. There is a tariff on blank audio CD-Rs that largely goes to the artists: composers, lyricists, session musicians, backup singers, and the like. Some of it goes to the copyright holders of the recordings, which are typically the record companies, but none of it goes directly to the RIAA. This is an important distinction to understand if you are of the general opinion that musicians are good and the RIAA is evil.

Here is the section of US copyright law that breaks down the distribution of the tariff.

By the way, the way to avoid paying this tariff is to buy standard blank CD-Rs and avoid the overpriced audio CD-Rs.

It is really too bad in my opinion that there is no fair use clause in the patent law like there is for copyrights. The 4th fair use clause in the copyright law is "the effect of the use upon the potential market for or value of the copyrighted work" Cite Here

What this means for those who dont know, is that in general, if the company being sued for copyright infringement were to stop being able to use the copyrighted work, then the suing company would have a monopoly on the market. There was case using this clause where Sega was suing a company for including copyrighted code in their third party releases for segas console so that even though they werent licensed by sega, they could still be played on the console. Cite Here

In my opinion there should be something similar in patent to protect against these silly patent lawsuits.

"And how does the government determine to whom these payments go?"

It's set forth in copyright law. It's a bit hard to understand, but it's there. Note that the majority goes to musicians, composers and lyricists, not the record companies.

"If I buy a blank CD, record some original sounds of my own creation, and copyright my creation, should I then get a piece of that tax?"

It depends. If you've registered with ASCAP/BMI they should be able to help you, or if you're in AFM / AFTRA, check with your local office. It won't be much, but you're entitled to it, directly or indirectly.

"So should the USA government put a new tax on all blank paper?"

No. The reasoning here is that a blank audio CD-R has a significant chance of being used to make a copy of some copyrighted music. Blank paper has a myriad of uses. The way to avoid these slippery-slope types of situations is to examine the actual expected probability of something occurring. Slippery slopes can be fun, particularly on Slashdot ("They're suing Kazaa because it's used for piracy, thus [...] McDonald's should be forced out of business!") but folks with legal background know how to deal with them. Lots of details must be examined and eventually a judgement call must be made. It's not as simple as many people think.

"The music industry already taxes virgin CD's if they are marketed for the purposes of recording audio. That's why "Audio CD-R's" are several dollars more than "Data CD-R's" even though they are identical."

This part is correct.

"Of course the problem is, this doesn't go to the artists or the musicians, it goes to the RIAA to fuel their lawsuits."

The majority of the tariff does go to artists and musicians. It is a popular perception that the audio CD tariff goes largely to the record companies, but it is still wrong.

I acknowledge that playing "follow the money" with this tariff can be tough, but I'll give it a shot. 2/3 of it goes to what the government calls the "Sound Recordings Fund." The rest goes to the "Musical Works Fund." The difference between these two is that one deals with recordings, and the other deals with music publishing.

The Musical Works Fund money is split 50/50 between writers and publishers. While a composer or lyricist may hire an agency to represent them in terms of published music, or sell their publishing rights, writers and publishers are typically the creative folks themselves -- the people who write lyrics and compose melodies. Not record companies, but artists.

Part of the "sound recordings fund" goes to various musician's unions; this is the mechanism by which background singers, session musicians, etc. get their "cut." Another part goes to people who have the rights to distribute the recordings. These are typically the record companies; they generally have these rights because they spent the time and money necessary to get the music produced and distributed, and it's important to stress that this is not the majority. Lastly, another part goes to featured performers -- the folks whose names are typically front-and-center on the CD artwork, and not the background/session musicians and vocalists.

By the way, I learned all this by reading copyright law. It's an excellent resource.

"Do You Have A License For Those Facts?" (my debunking and I'm a certified IP wonk).

And how, pray tell, does one get "certified" as an "IP wonk"? That article was not wrong, and in fact it was relatively on the money.

While IANAL, I have taken a class in copyright law at Duke Law School and have followed CS IP issues for about eight years now.

You're completely overlooking a few provisions of the bill. Mainly Sections 5(A) and 5(C)

(A) IN GENERAL- Subject to subparagraph (B), the term `database' means a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them.

[...]

(C) DISCRETE SECTIONS- The fact that a database is a subset of a database shall not preclude such subset from treatment as a database under this Act.

For an example of how rules this like this have already gone awry, read about this case over in the UK. In short, a horseracing agency licensed its database of races, start times, horses involved, etc, for use in casino-type betting agencies. William Hill, Ltd, the gambling company, also placed race times, horses, and odds on its website. The EU court ruled that placing even this amount of information on the web was an "unlicensed" use of a subsection of the database.

So, Mr. "IP Wonk", please explain why that won't happen here, given the two clauses above. There are a lot of horse races -- one might even say a "large" number of races -- and the "database" of race times and horses involved is a subset of the larger database of all horse-racing data.

"Your Honor, we conceed that the defendants might have looked /somewhere/ else to get race times, but they had access to race times from us through our database license, which did not allow them to post those facts^W^Wthat database on their website. They /stole/ our property."

And given this country's tendency to "litigate first, and let the court sort it out", plus the courts' willingness to bend over backwards to punish those "pirates", how long before another SCO shows up claiming that the database of error names, numbers, and description strings is theirs? Even Nimmer and Jane Ginsburg, both staunch pro-IP, pro-DMCA lawyers have stated that a database protection bill is unnecessary [pdf].

Of course, I might be wrong. I don't have my "IP wonk" degree yet.

-jdm

A couple things. First, the Berne, Paris, et al., conventions and treaties are not binding. Look to the Copyright Act. In particular, Appendix II, s.2:
(2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law.
This is only relevant in cases of conflict.

s. 106(1) of the US Copyright Act provides the owner protection from copying. SCO will probably argue for a violation of their literary rights to the source code, which though it need not be distributed with the binaries, need be available to be distributed with the binaries [See GNU GPL, s.3(b)], an invitation to copyright infringement. As well, SCO will probably argue that there has been a violation of their right to the binaries.

In both cases, they can go after either the distributor or the recipient for this claim, but will no doubt choose to go after the deeper pockets, and try to set a precedent. You are correct in taht there is no Copyright regime exclusivity of use, but I am not sure there has to be one. We will see!

At current, the DMCA takes precedence. It is an all inclusive law that supersedes prior copyright law. However, it should also be noted that our current idea of fair use only goes back to the late 70s. Check out the 1976 amendments to title 17 of the use copyright act.

Copyright occurs at conception

More precisely, copyright protection is obtained at the time of "fixation". While the lyrics are bouncing around your head, they're not protected by copyright law, but as soon as you write them on paper, they are. Singing a song out loud doesn't grant you any copyright protection, but as soon as you record it, it's protected.

However, the other poster's notion that there is some fundamental legal difference between a registered and an unregistered copyright is nonsense. The registration process doesn't change the nature or "strength" of ownership, it merely documents who the owner is.

The law is pretty clear on all of this. Section 102 of Title 17 of the US Code says:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated

Note the lack of any mention of registration. Fixing original works of authorship in any tangible medium grants full copyright protection.

On registration, section 408 has this to say (emphasis mine):

At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection.

So you can register at any time during your copyright term, and registration is not a condition of protection. So why register? Simple: You're not allowed to sue for most copyright infringement until after you register. From section 411:

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.

Note that you're merely barred from taking action (i.e. filing suit) until after the copyright registration has been filed; nothing prevents you from acting on infringements that occurred before you filed, because you have copyright protection from the moment of fixation.

There is one limitation on legal action for pre-registration infringement, though (section 412) -- you cannot get statutory damages or attorney's fees, unless you registered within three months of first publication. This means that Eminem is limited to recovering actual damages, unless he's trying to claim that Apple violated his rights under section 106A(a), Rights of certain authors to attribution and integrity, but I don't see that Apple either claimed the music was created by someone else, claimed someone else's music was his, or distorted his music and passed it off as his original work.

No, IANAL. But I can read.

Now the label is suing Apple for a song that wasn't legally copyrighted until long after that commercial was run on MTV. Its a ploy to get his name in the papers and keep it there.

Legally copyrighted? Eminem owned the copyright to any lyrics or music he created the moment its was created. (See Copyright.gov if you want more details.)

I have no idea what the facts of the case are, but Apple should take a beating if things are as alleged. If some Apple (read: corporate behemoth ) decides it can just use any copyrighted work it wants to in its advertisements without permission then the games over.

This isn't a little fair use that I want to copy my CD as a backup or to store in my car. Or even use if for a home movie. Apple (it is alleged) was trying to profit off of Eminem's work without Eminems permission or blessing and without reimbursing Eminem.

That's the most compelling reason for copyright.

Weird Al does attempt to contact the artists he is parodying, but parody is acceptable under copyright law.

Coolio included a sample as well as a rewrite, so he must have gotten permission.

Reference website.
Cover songs are covered under a mechanical license. The artist cannot stop you from covering their song.

Samples require the permission of the publisher and the owner of the master. They set the terms, so they can easily charge enough to make it infeasible.

From the copyright office:
There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.

I know that chord progressions cannot be copyrighted, or all combinations of I-IV-V would have been eliminated long ago. But I would not use Star Wars' Imperial March without disguising it. The similarity argument rests on
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
The only case I remember was Bon Jovi suing and winning for one line of "Living on a Prayer", but I cannot find a reference. They won because the line was the same words and melody in the chorus. (I think it was "We're halfway there".)

If "On Top of Old Smokey" was not public domain, we would not have "Chariots of Fire". Restaurants write their own (awful) birthday songs to avoid paying for "Happy Birthday" written in 1893.

I wonder that melody is considered so important, since every singer applies very different melodies to my songs. I usually write 2 melodies for each song for my own singing so I can change depending if my voice has warmed up. Live versions usually have different melodies than the studio versions. I saw Britney Spears do "Baby One More Time" in a medley on TV once, and the melody was very different than the radio version. (I think it was because the TV version was live and only had one note.)

Today it is up to the artist to notice that someone released a very similar song. "Melancholy Elephants" refers to a world where the copyrights are checked against existing music before being issued. Given the patent office's reluctance to do anything resembling work, we should not have to worry about automatic copyright validation, but it would be much easier to validate music with computers than patents.

Weird Al does attempt to contact the artists he is parodying, but parody is acceptable under copyright law.

Coolio included a sample as well as a rewrite, so he must have gotten permission.

Reference website.
Cover songs are covered under a mechanical license. The artist cannot stop you from covering their song.

Samples require the permission of the publisher and the owner of the master. They set the terms, so they can easily charge enough to make it infeasible.

From the copyright office:
There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.

I know that chord progressions cannot be copyrighted, or all combinations of I-IV-V would have been eliminated long ago. But I would not use Star Wars' Imperial March without disguising it. The similarity argument rests on
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
The only case I remember was Bon Jovi suing and winning for one line of "Living on a Prayer", but I cannot find a reference. They won because the line was the same words and melody in the chorus. (I think it was "We're halfway there".)

If "On Top of Old Smokey" was not public domain, we would not have "Chariots of Fire". Restaurants write their own (awful) birthday songs to avoid paying for "Happy Birthday" written in 1893.

I wonder that melody is considered so important, since every singer applies very different melodies to my songs. I usually write 2 melodies for each song for my own singing so I can change depending if my voice has warmed up. Live versions usually have different melodies than the studio versions. I saw Britney Spears do "Baby One More Time" in a medley on TV once, and the melody was very different than the radio version. (I think it was because the TV version was live and only had one note.)

Today it is up to the artist to notice that someone released a very similar song. "Melancholy Elephants" refers to a world where the copyrights are checked against existing music before being issued. Given the patent office's reluctance to do anything resembling work, we should not have to worry about automatic copyright validation, but it would be much easier to validate music with computers than patents.

Those same recording media fees are charged here in the USA, too (on blank cassettes and "Music" CD-Rs). This was made law at the same time as suits against consumers for making copies were prohibited!

I keep wondering how they are suing noncommerical infringers considering that the law says they can't sue them.

Title 17, Chapter 10 "1008. Prohibition on certain infringement actions No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

I guess it must be that this section protects the act of making the recording but not distributing it. Thus, it would be legal to use the "digital audio recording device" embodied in your computer and favorite digital music software to make a copy of music available via P2P but not to let others get your music files.

(I'm no lawyer, but I play one on slashdot.)

...there is to be a live audio stream of the event...

You think they'll have to pay CARP?

They should, at least the Business Establishment fee. It would be legally interesting if they didn't...

The NFL says NO WAY to Casinos in las vegas showing the game on anything bigger than a 55" TV. They say its copyright law, but last I checked copyright law didnt say anything about TV Size.

(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;

As someone who teaches Cyberlaw and runs a program on law and technology, I'd urge you to consider broadening your horizons a bit, and to focus on practical rather than theoretical discussions. As relevant as IP law is to the technology industries, it is only one small part of the whole picture. Contract law, corporate structure finance (yes, even in this post-bubble era!), privacy law and especially international law are also crucial subjects to learn.

I'd echo the sentiments of those who said to take a look at casebooks and other law school texts in a local library. You can also go to the sources for IP law: the U.S. Copyright Office and Patent and Trademark Office have some good basic info, as does the Federal Trade Commission on privacy rules. This site has a good list of info. on doing e-business throughout the world. Finally, for an introduction to Internet-related business legal issues, you can always find my book in a local library.

Finally, you'll need to decide if you actually want to be a lawyer. Law school is rather expensive these days, even for state schools, and the loan burden for many of our students is severe. Feel free to e-mail me if you'd like to ponder this further. {Professor Jonathan Ezor}

Nothing you read on Slashdot is legal advice.

it has probably been tweaked in some way so that copying it is, in fact, not legal. If it has been newly typeset, edited, annotated, etc, that is all fair game for copyright even if the music itself is in the public domain.

A publisher's typesetting and annotation would affect only the right to reproduce the work through photocopying or to reproduce the annotations. Transcribing the notation from a public domain song in a copyrighted compilation does not infringe the compilation's copyright unless somebody (who would usually be credited) has noticeably arranged the work. Copyright Office Circular 14 explains: "Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes." You may have read about mapmakers that add fake streets to maps to prove copying. In the case of public domain musical works, this would prove copying but, given uncopyrightability of trivial derivatives, would probably not prove copyright infringement.

That is, unless somebody can respond to this comment with a link to a decision that holds otherwise.