Slashdot Mirror

The U.S. copyright act, silly. 107. Limitations on exclusive rights: Fair use

This ability to transfer ownership of a DVD, book, CD, or VHS tape is because of the "principle of first sale." This is not a legal right, however, and only exists because it has been technologically impossible to prevent up to now, and because IP vendors were content with the revenue from the first sale.

Do some research before you start spouting about things you don't understand -- the right of first sale is codified in law, and has been affirmed by the supreme court in numerous cases. There may be debate about how it applies to some digital media by some corporations, but that doesn't change the fact that it certainly is a legal right.

Content is automatically Copyrighted under US Law as soon as it is made into a "fixed form". Broadcasting of the original copyrighted material does not invalidated the original copyright. This is probably the best place for you to start learning about Copyright law.

I believe as long as you are not selling it fair use applies. Besides most TV shows are broadcast across the airwaves making them public domain, since anyone could intercept them.

Although commercial vs. non-commercial use is a consideration in determining fair use, the intent is to protect non-commercial educational use, not just giving copies to your friends for the fun of it. The fact that you're not charging money does not automatically make it fair use.

Nor does free distribution place a work in the public domain. Works in the public domain by definition receive no copyright protection. There are plenty of examples of freely distributed works which are under copyright, including most free software.

It is the editors job to write wrong notes so it may not be copied although the composer died more than 100 years ago.

I don't know about European copyright, but according to the United States Copyright Office, publishing a spell-checked edition of a novel does not create a sufficiently original work of authorship worthy of its own copyright. Likewise, neither would inserting deliberate errors as a sort of "watermark".

My understanding was that recordings in the US weren't even covered by copyright until 1972 or so.

Now i'm going to do some googling...

February 15, 1972

Effective date of act extending limited copyright protection to sound recordings fixed and first published on or after this date.

For reference

Hmm. Now, if i'm reading this right, the actual sound recordings of pre-1972 music aren't even covered by copyright and probably are freely redistributable, right? Which means...who cares about the Euro copyrights from a US perspective?

Kindly correct me if i'm wrong.

I am going back completely on my original post here. This has absolutely nothing to do with Copyright infringement. They are not using a script written by paramount, they are not using clips from Star Trek movies or shows, and they aren't even using names from Star Trek. This is an original work that is heavily influenced by Star Trek.

Now if you want to talk of trademarks then they can not (and do not) use the Star Trek name or any other word, phrase or symbol that is a registered trademark of Paramount.

This is not a derivative work since it is not based on any existing script and it is not fair use because it doesn't use any copyrighted materials at all.

I would also point out that fair use is far more than criticism and parody. Take a look here for a full definition.

I was shocked that the New York Times Mangzine article about this film neglected to mention any of the copyright issues. Very few (no?) motion pictures have yet entered the public domain.

Prior to 1978, copyrights didn't last nearly as long as they do now. Without renewals, copyright protection only lasted 28 years. Surely, there's plenty of films in the public domain from the 1910's and 1920's.

MIDI only requires a license from the songwriter, and those are cheap.

Not only cheap, but compulsory. [pdf]

I think the ringtone craze is kind of cool... back in the days before CD-quality audio I used to be amazed by the chiptunes that talented game musicians could coax out of the meager little 4-voice FM synthesis chips on the old 8-bit consoles and computers. Just like the Gameboy Advance has kept the 2D scroller alive while the high-end consoles are all doing 3D, I see these programmable ringers as keeping the old chiptune music alive in a way.

I'm making two separate replies to this comment because it appears that we have raised two separate issues that would best be discussed separately so as not to confuse anybody.

What reason would the Government of the United States of America have to get involved with something stupid like this. Not only paying songwriters, but setting a specific price by law? WTF? In 50 years when inflation makes that worth even less than it is now, will congress change the law to 20 cents?

CARP does that regularly. See 17 USC section 115, chapter 8, and a history of mechanical license royalty rates. The law seems to specify that CARP keep royalties roughly in step with the Consumer Price Index.

That doesn't mean that a songwriter has to get paid at all. It just says that 8 cents is the most he or she can charge.

I apologize for writing my comment in such a misleading way. Yes, 8c/copy is only a cap on what copyright owners can demand. However, professional songwriters who regularly license musical works to recording studios typically demand the full eight cents per copy.

Does my shitty indy band have to contact Somerville & company, or pay up to $0.08 for every song pressed?

To obtain rights to perform and publish a cover recording of a television show theme song, yes, you have to contact the copyright owner some time in advance (section 115 makes an exception for copyright owners whose contact information in the copyright registration is outdated) and pay royalties (either at the 8c/copy cap or at a negotiated rate) for every phonorecord distributed, whether on CD or even in OGG format, whether for free or for pay.

unlike a radio broadcast (to which this statute does not apply) when you share via MP3, a new, permanent copy is made. But how is this different from me tape recording the song off of the radio (which is legal, I believe because of time shifting rulings, please correct me if I'm wrong)? Does a songwriter technically have to get a royalty off of that too?

The differences: For one thing, when the "performance" is on demand, it's not a "broadcast" and therefore not a "public performance" of the musical work. For another thing, the sound recording copyright owner has an additional right to control "public performances" through a digital transmission.

IANAL, but this exercise is not fruitless.

The last time they took comments, they implemented two exceptions to the DMCA anti-circumvention statute. Based on comments in 2000, they decide to allow the circumvention of content protection in two cases:

1. Compilations consisting of lists of websites blocked by filtering software applications; and
2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.

These exemptions are in effect from October 28, 2000 to October 28, 2003.

In other words, this is relevant, and not a waste of dissenter's time. However, it is not a replacement for judicial or legislative attempts to overcome a bad law.

News:Closely watched copyright case goes to jury - San Francisco Chronicle - 2 hours ago
Groups at odds over hidden copyright fees - The Globe and Mail - 11 Dec 2002
Defense rests in ElcomSoft copyright trial - San Jose Mercury News - 10 Dec 2002
New! Try Google News: Search news for copyright or browse the latest headlines

US Copyright Office
US Copyright Office is an office of public record for copyright registration and
deposit of copyright material. ... (Legal Notices)Legal Notices. About Copyright. ...
Description: Office of public record for copyright registration and deposit of copyright material.
Category: Regional>NorthAmerica>...>LibraryofCongre ss
www.loc.gov/copyright/ - 36k - Dec. 12, 2002 - Cached - Similar pages

Copyright Website
Copyright Website - The Copyright Wizard. Copyright your online assets -
online. ... Copyright Wizard. Register copyright for your Website - online! ...
Description: Endeavoring to provide real world, practical and relevant copyright information.
Category: Society>Law>...>IntellectualProperty>Copyrights
www.benedict.com/ - 23k - Dec. 12, 2002 - Cached - Similar pages

Copyright Clearance Center: Permissions Made Easy
... Do you want to file a copyright for your work? ... Note: copyright.com
supplies permissions but not the copyrighted content itself. ...
Description: Offering licensing systems that facilitate compliance with the copyright law and promote the constitution...
Category: Society>Law>...>CopyrightServices>Licensi ng
www.copyright.com/ - 22k - Dec. 12, 2002 - Cached - Similar pages

SUL: Copyright & Fair Use
... Overview of Copyright Law Copyright Management Center of the University
of Texas System Administration Office of General Counsel. ...
Description: A very good starting place built by the Stanford University.
Category: Arts>Music>Resources>Copyright
fairuse.stanford.edu/ - 5k - Dec. 12, 2002 - Cached - Similar pages

10 Big Myths about copyright explained
10 Big Myths about copyright explained. An attempt ... Internet publication.
- by Brad Templeton. Note that this is an essay about copyright myths. ...
Description: Answers to common myths about copyright from Brad Templeton, former publisher at ClariNet Communications...
Category: Society>Law>...>IntellectualProperty>Copyrights
www.templetons.com/brad/copymyths.html - 23k - Dec. 12, 2002 - Cached - Similar pages

What is Copyright Protection?
What is Copyright Protection? A brief memorandum regarding copyrights
in general and as may be applied to the internet. Researched ...
Description: Information about copyrights in general, and as applied to the internet.
Category: Society>Law>...>IntellectualProperty>Copyrights
www.whatiscopyright.org/ - 2k - Cached - Similar pages

TITLE 17
... TITLE 17 TITLE 17 - COPYRIGHTS. CHAPTER 1 SUBJECT MATTER AND SCOPE
OF COPYRIGHT; CHAPTER 2 COPYRIGHT OWNERSHIP AND TRANSFER; CHAPTER ...
Description: Title 17- Copyrights- of the US Code in its entirity from Cornell University
Category: Society>Law>...>IntellectualProperty>Copyrights
www4.law.cornell.edu/uscode/17/ - 5k - Dec. 12, 2002 - Cached - Similar pages

US Copyright Office, Copyright Basics (Circular 1)
Circular 1. Copyright © Basics Español September 2000. Copyright
Basics. Format Note. Table of Contents. ... WHAT IS COPYRIGHT? Copyright ...
www.copyright.gov/circs/circ1.html - 78k - Cached - Similar pages

THE UT SYSTEM CRASH COURSE IN COPYRIGHT
Copyright Crash Course Logo with Link to Copyright Crash Course, Want to use, images?
Want to create things with them? You need a crash course in copyright... ...
Description: Beginner's guide to all aspects of copyright law, from the University of Texas.
Category: Society>Law>...>IntellectualProperty>Copyrights
www.utsystem.edu/ogc/intellectualproperty/cprtin dx.htm - 11k - Cached - Similar pages

IPR Notice and Disclaimers
... Copyright © 1994-2002 W3C ® (Massachusetts Institute of Technology, Institut National
de Recherche en Informatique et en Automatique, Keio University), All ...
www.w3.org/Consortium/Legal/ipr-notice - 12k - Cached - Similar pages

Dissatisfied with your search results? Help us improve.

GoogleHome - AdvertisewithUs - SearchSolutions - Services&Tools - Jobs,Press,&Help
2002 Google

For instance, simply making spelling corrections throughout a work does not warrant a new registration -- adding an additional chapter would.

Ok. Assuming you don't just want to delete the spam (i.e. you wish to make things complicated for yourself). You should do the following:

1. Consult Copyright.gov
a. Notably, see Circular 21 on page 12 they cover Reproduction by Libraries and Archives.
b. Also see FL 102 on Fair Use.
2. Consult a Lawyer. After reading that, and perhaps researching the issue some more, if you feel that you are still within your fair use rights and you wish to stand by your ethics and values that make you want to keep the spam on the website, Then you really should consider contacting a lawyer. You could try and just ignore the email. I would request that they send you an official letter (via registered mail) stating the legal reasons for the threat.

Also, Note: Contrary to what some comments on this site indicate, the spammer does not have to include a copyright notice on the email. This is especially true if you consider the act of emailing to be a form of publishing the message. See http://www.copyright.gov/circs/circ1.html#hsc

Ok. Assuming you don't just want to delete the spam (i.e. you wish to make things complicated for yourself). You should do the following:

1. Consult Copyright.gov
a. Notably, see Circular 21 on page 12 they cover Reproduction by Libraries and Archives.
b. Also see FL 102 on Fair Use.
2. Consult a Lawyer. After reading that, and perhaps researching the issue some more, if you feel that you are still within your fair use rights and you wish to stand by your ethics and values that make you want to keep the spam on the website, Then you really should consider contacting a lawyer. You could try and just ignore the email. I would request that they send you an official letter (via registered mail) stating the legal reasons for the threat.

Also, Note: Contrary to what some comments on this site indicate, the spammer does not have to include a copyright notice on the email. This is especially true if you consider the act of emailing to be a form of publishing the message. See http://www.copyright.gov/circs/circ1.html#hsc

Your message contains a number of clearly wrong statements. At least, wrong given my fairly large assumption: that we're discussing United States law. If you're discussing a different country, my apologies, I know very little about other countries copyright laws beyond the general guidelines set down by the Berne Convention.

The only thing that permits you to enjoy the copyright holder's rights, under copyright law, is a license granted to you by the copyright holder.

Sure enough. Of course under copyright law the rights exclusively granted to the copyright holder boil down to the right to distribute new copies. There are a few other details like restrictions on "public performance," but in a nutshell copyright is about limiting who is allowed to distribute copies.

Feel free to check out the U.S Copyright Office's "What is Copyright?" It's a pretty good summary of what the copyright holder's rights are.

In copyright law the concept of sale deals exclusively with the sale of copyright (i.e. transfer to another copyright holder); the only alternative to this, in which the original holder retains his/her copyright, is a license.

That is erroneous. There is a third option, the option used in 99% of all transactions involving a copyright protected work. This option is used whenever you visit a local store and purchase a book, CD, or DVD. With this option, I purchase a single instance, a single copy of the work. Copyright remains with the original holder. That particular copy becomes mine, it is my property, and I'm free to dispose of it as I wish. This is only restricted by laws governing my actions. Under the DMCA I'm not allowed to break any encryption on the DVD. Under various laws, I'm not allowed to sharpen the disc into a razor point and kill people with it. And under copyright law I'm not allow to make copies and distribute those newly made copies. Beyond various laws like that, I'm free to do a great deal with my property, be it a chair, a car, or a DVD. I can resell it, loan it out, give it away, destroy it, make copies for personal use, will it to my inheritors, look at it, show it to my friends, or throw it away.

Unless a law specifically forbids me from doing something, I'm legally allowed to do it. Copyright law specifically forbids be from distributing new copies of works protected by copyright. (Unless I am the copyright holder, in which case even that restriction is lifted.) Copyright law specifies no licenses, be they implicit or explicit.

Again, please check out the U.S Copyright Office's "What is Copyright?" You'll notice the decided lack of commentary on licenses, loans, and other powers you have incorrectly assigned to copyright holders.

Your message contains a number of clearly wrong statements. At least, wrong given my fairly large assumption: that we're discussing United States law. If you're discussing a different country, my apologies, I know very little about other countries copyright laws beyond the general guidelines set down by the Berne Convention.

The only thing that permits you to enjoy the copyright holder's rights, under copyright law, is a license granted to you by the copyright holder.

Sure enough. Of course under copyright law the rights exclusively granted to the copyright holder boil down to the right to distribute new copies. There are a few other details like restrictions on "public performance," but in a nutshell copyright is about limiting who is allowed to distribute copies.

Feel free to check out the U.S Copyright Office's "What is Copyright?" It's a pretty good summary of what the copyright holder's rights are.

In copyright law the concept of sale deals exclusively with the sale of copyright (i.e. transfer to another copyright holder); the only alternative to this, in which the original holder retains his/her copyright, is a license.

That is erroneous. There is a third option, the option used in 99% of all transactions involving a copyright protected work. This option is used whenever you visit a local store and purchase a book, CD, or DVD. With this option, I purchase a single instance, a single copy of the work. Copyright remains with the original holder. That particular copy becomes mine, it is my property, and I'm free to dispose of it as I wish. This is only restricted by laws governing my actions. Under the DMCA I'm not allowed to break any encryption on the DVD. Under various laws, I'm not allowed to sharpen the disc into a razor point and kill people with it. And under copyright law I'm not allow to make copies and distribute those newly made copies. Beyond various laws like that, I'm free to do a great deal with my property, be it a chair, a car, or a DVD. I can resell it, loan it out, give it away, destroy it, make copies for personal use, will it to my inheritors, look at it, show it to my friends, or throw it away.

Unless a law specifically forbids me from doing something, I'm legally allowed to do it. Copyright law specifically forbids be from distributing new copies of works protected by copyright. (Unless I am the copyright holder, in which case even that restriction is lifted.) Copyright law specifies no licenses, be they implicit or explicit.

Again, please check out the U.S Copyright Office's "What is Copyright?" You'll notice the decided lack of commentary on licenses, loans, and other powers you have incorrectly assigned to copyright holders.

When you purchase any items in which copyright subsists, you gain an implicit license to use the copyright content. That license and its extent is governed by common law, and is generally taken to mean that you have a limited set of rights over a particular copy of the content.

When I buy a book, I own the book. I do not license anything, and the thing that allows me to use its contents is the fact that it's my book.

You are explicitly wrong about loaning out the item you purchased. This is one of the reversed rights under copyright law, the same as reproduction, publication, broadcast, etc. You cannot let any copyright work without permission. Most countries have blanket exclusions for public libraries and certain cinemographic works, but that's it.

Actually, he's right. According to the us copyright code, the only thing banned is loan of a particular copy for commerical advantage. You can still loan a book to your friend. The reserved rights you refer to specify loan as a possible method for publication, but that's a fair bit different from loan of an already published copy.

There are a lot of good arguments against copyright law, including that it impedes the free exchange of ideas, adds to corporate exploitation of the working class, and contributes to intellectual, industrial, and artistic stagnation in general. It's pretty easy to see the difference between the Rennaisance (pre-copyright) and the 2001 MTV Video Music Awards (post-copyright). We're not even in the same league anymore, and it's easy to see why.

Look at how difficult it is for the Supreme Court to understand the First and Second Amendments, which are pretty freaking straightforward in comparison; do you really think we have a *prayer* of understanding the original copyright laws?

So, if the DMCA is the worst thing to happen ever, why don't you folks get off your asses and do something! Seriously, a lot of the people here seem to spend time decrying the DMCA, while still living under its rule... "WAAAAH, but I can't do anything" is what I hear. That's bull. The DMCA is currently under review! Why not post your comments?

It's a lot easier to say that a law should be abolished than to actually get up and try to abolish it. Hell, even the most recent slashdot poll shows how little you people are really willing to comit to ending this law: 51% of people chose a form of the "No" option, and 31% chose the CowboyNeal option. A relavent state motto comes to mind: "Live free or DIE!" In other words, either do what needs to be done, or suffer the consequences... I have no sympathy for those who don't vote, only to bitch about the current administration, and I don't have any sympathy for those who bitch about laws, yet never take any action to end those laws.

Oh, so this comment won't be *entirely* a -1 Troll, check this link out sometime: http://www.copyright.gov/1201/comment_forms/index. html Want to change the law? Want to get your voice heard? Do it! Just remember to be polite, your leters will be taken much more seriously.

-jokerghost
Live free or DIE!

Well, the Library of Congress pretty much squashed anything to do with DeCSS in the last round, lets see how they like this. The second anticircumvention rulemaking requests written commentsfrom all interested parties (Nov 19 - Dec 18). We'd like to see the law go away - they only want exemptions. I'm not sure if this fits, because they keep asking for a 'technological measure', but maybe this is some of the ammo we've been looking for.

The purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.

Format is important. Know what they are looking for and how they want it presented.

First, a proponent must identify the technological measure that is the ultimate source of the alleged problem, and the technological measure must effectively control access to a copyrighted work.

Second, a proponent must specifically explain what noninfringing activity the prohibition on circumvention is preventing.

Third, a proponent must establish that the prevented activity is, in fact, a noninfringing use under current law. The nature of the Librarian's inquiry is further delineated by the statutory areas to be examined:
(i) The availability for use of copyrighted works;
(ii) The availability for use of works for nonprofit archival, preservation, and educational purposes;
(iii) The impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
(iv) The effect of circumvention of technological measures on the market for or value of copyrighted works; and
(v) Such other factors as the Librarian considers appropriate.

For those that didn't see the prior article, or haven't made the connection, this is a wonderful opportunity to offer an example of what's wrong with the DMCA. Those who are articulate, knowledgable about legal stuff, and / or involved in these cases should definitely contribute. Here's the Slashdot story, and here's the site soliciting comment.

I just went there with the full intention of submitting. The problem is that I don't have time to wade through their fairly obtuse, 36K Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies document so that my submission must follow the "format detailed in the notice of inquiry". Specifically, I wasn't able to determine what the proposed class or classes of copyrighted work(s) to be exempted were, nor whether they met the requirements laid out in the scope of term "class of works". Briefly, the term "class of works" means:

The Register found that the statutory language required that the Librarian identify a ``class of works'' primarily based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or the users of the works. The phrase ``class of works'' connotes that the shared, common attributes of the ``class'' relate to the nature of authorship in the ``works.'' Thus a ``class of works'' was intended to be a ``narrow and focused subset of the the broad categories of works of authorship * * * identified in section 102.'' Commerce Comm. Report, at 38. The starting point for a proposed exemption of a particular class of works must be the section 102 categories of authorship: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

Worse than that, I don't know if I can submit comments at all. If I understand their requirements for argument(s) in support of the exemption proposed, I'm not sure I can say that adding lame, easily circumvented copy proctection to CDs is enough to allow me to ask for an exemption. Here's what they say I need to tell them:

In the last rulemaking the Register determined that the burden of proof is on the proponent of an exemption to come forward with evidence supporting an exemption for a particular class of works. Therefore, the initial comment period in this rulemaking specifically seeks the identification of this information from proponents of exemptions. First, the commenter should identify the particular class of works that is being proposed as an exemption, followed by a summary of the argument for the exemption. The commenter should then specify the facts and evidence providing a basis for this exemption and any legal arguments in support of the exemption. Finally, the commenter may include in the comment any additional information or documentation which supports the commenter's position.

I'm glad you mentioned the submission form, and I hope enough people with more free time on their hands than me can put together enough arguments that the DMCA ia reviewed and exemptions are provided. I'd just like to point out to people that it's not as easy as filling in a web form with "I need to be able to make my Eminmem MP3s..." They want people to say things like "If the only way to access the complete works of Charlie Parker are via DMCA-restricted means, then we need an examption" and then show them, in a way detailed enough for a government employee to understand, why that is the case.

-B

I just went there with the full intention of submitting. The problem is that I don't have time to wade through their fairly obtuse, 36K Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies document so that my submission must follow the "format detailed in the notice of inquiry". Specifically, I wasn't able to determine what the proposed class or classes of copyrighted work(s) to be exempted were, nor whether they met the requirements laid out in the scope of term "class of works". Briefly, the term "class of works" means:

The Register found that the statutory language required that the Librarian identify a ``class of works'' primarily based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or the users of the works. The phrase ``class of works'' connotes that the shared, common attributes of the ``class'' relate to the nature of authorship in the ``works.'' Thus a ``class of works'' was intended to be a ``narrow and focused subset of the the broad categories of works of authorship * * * identified in section 102.'' Commerce Comm. Report, at 38. The starting point for a proposed exemption of a particular class of works must be the section 102 categories of authorship: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

Worse than that, I don't know if I can submit comments at all. If I understand their requirements for argument(s) in support of the exemption proposed, I'm not sure I can say that adding lame, easily circumvented copy proctection to CDs is enough to allow me to ask for an exemption. Here's what they say I need to tell them:

In the last rulemaking the Register determined that the burden of proof is on the proponent of an exemption to come forward with evidence supporting an exemption for a particular class of works. Therefore, the initial comment period in this rulemaking specifically seeks the identification of this information from proponents of exemptions. First, the commenter should identify the particular class of works that is being proposed as an exemption, followed by a summary of the argument for the exemption. The commenter should then specify the facts and evidence providing a basis for this exemption and any legal arguments in support of the exemption. Finally, the commenter may include in the comment any additional information or documentation which supports the commenter's position.

I'm glad you mentioned the submission form, and I hope enough people with more free time on their hands than me can put together enough arguments that the DMCA ia reviewed and exemptions are provided. I'd just like to point out to people that it's not as easy as filling in a web form with "I need to be able to make my Eminmem MP3s..." They want people to say things like "If the only way to access the complete works of Charlie Parker are via DMCA-restricted means, then we need an examption" and then show them, in a way detailed enough for a government employee to understand, why that is the case.

-B

I just went there with the full intention of submitting. The problem is that I don't have time to wade through their fairly obtuse, 36K Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies document so that my submission must follow the "format detailed in the notice of inquiry". Specifically, I wasn't able to determine what the proposed class or classes of copyrighted work(s) to be exempted were, nor whether they met the requirements laid out in the scope of term "class of works". Briefly, the term "class of works" means:

The Register found that the statutory language required that the Librarian identify a ``class of works'' primarily based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or the users of the works. The phrase ``class of works'' connotes that the shared, common attributes of the ``class'' relate to the nature of authorship in the ``works.'' Thus a ``class of works'' was intended to be a ``narrow and focused subset of the the broad categories of works of authorship * * * identified in section 102.'' Commerce Comm. Report, at 38. The starting point for a proposed exemption of a particular class of works must be the section 102 categories of authorship: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

Worse than that, I don't know if I can submit comments at all. If I understand their requirements for argument(s) in support of the exemption proposed, I'm not sure I can say that adding lame, easily circumvented copy proctection to CDs is enough to allow me to ask for an exemption. Here's what they say I need to tell them:

In the last rulemaking the Register determined that the burden of proof is on the proponent of an exemption to come forward with evidence supporting an exemption for a particular class of works. Therefore, the initial comment period in this rulemaking specifically seeks the identification of this information from proponents of exemptions. First, the commenter should identify the particular class of works that is being proposed as an exemption, followed by a summary of the argument for the exemption. The commenter should then specify the facts and evidence providing a basis for this exemption and any legal arguments in support of the exemption. Finally, the commenter may include in the comment any additional information or documentation which supports the commenter's position.

I'm glad you mentioned the submission form, and I hope enough people with more free time on their hands than me can put together enough arguments that the DMCA ia reviewed and exemptions are provided. I'd just like to point out to people that it's not as easy as filling in a web form with "I need to be able to make my Eminmem MP3s..." They want people to say things like "If the only way to access the complete works of Charlie Parker are via DMCA-restricted means, then we need an examption" and then show them, in a way detailed enough for a government employee to understand, why that is the case.

-B

bah! It's not about bad for Apple users. It's bad for everyone.

What I find funny is how the author thinks that because Apple doesn't have a DMCA-capable OS, that is going to miss out on the "next big thing". I don't know about everyone else, but I am actively encouraged by Apple's stance. Yes, "don't steal music", but no, don't fsck users simply to placate the gorillas in the MPAA and RIAA. Until a system comes along that lets people who have legitimately bought CDs to "rip mix burn", Apple are firmly on the side of the users. Unlike the MPAA and RIAA, they give a shit about their customers.

Anyway, as a result of MS's stance, I look forward to the article about "how the DMCA is bad for windows users".

Also, now is as good a time as any - get your ass over to the Copyright Office and let them know how the DMCA has legitimately infringed on your fair use rights. They've just opened up to submissions: "The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention"

-- james

by Adam C. Engst <ace@tidbits.com>

Much has been written about what's wrong with the Digital Millennium Copyright Act (DMCA). After all, it's been used to jail programmers, threaten professors, and censor publications, and because of it, foreign scientists have avoided traveling to the U.S. and prominent researchers have withheld their work. In a white paper about the unintended consequences of the DMCA, the Electronic Frontier Foundation argues that the DMCA chills free expression and scientific research, jeopardizes fair use, and impedes competition and innovation. In short, this is a law that only the companies who paid for it could love.

<http://www.eff.org/IP/DMCA/20020503_dmca_conseq uences.html >
<http://www.educause.edu/issues/dmca.html>
<http://anti-dmca.org/>

Just who are we talking about here? Primarily the large movie studios and record labels, who own the copyrights on vast quantities of content and who have been working with one another and via their industry associations, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), to control how we are allowed to interact with that content. Their unity of purpose and storm-trooper tactics have led some to dub them the Content Cartel.

<http://www.riaa.org/>
<http://www.mpaa.org/>

However, the DMCA is merely one link in a chain that's being used by the Content Cartel and many others to restrict access to the shared cultural heritage of the world, and in the process, extract money from our pockets, stifle innovation and competition, and protect entrenched interests.

DMCA and Trusted Systems -- I recently attended a talk by Professor Tarleton Gillespie <tlg28@cornell.edu> of Cornell University in which he made a compelling argument for how the Content Cartel is using the legal force of the DMCA to direct us down a path where content cannot exist outside of a trusted system, which is a set of hardware, software, and file formats that all agree on what the user is allowed to do with a piece of content. (The trust here is between the pieces of the system, because the content owners don't trust their customers at all.) The trusted system's goals are simple - to eliminate all unauthorized uses and create a situation where we pay more for the content we consume.

A trusted system could prevent you not only from copying a CD or DVD, but also from listening to the CD more than a certain number of times in a day or skipping commercials on a DVD or on broadcast television. Along with requiring us to buy new hardware to play such content and buy new protected versions of the content we already own, a trusted system could have another ill effect. That's because it could prevent us from working with content we would create, using tools such as those Apple kindly provides in iMovie, iDVD, iTunes, and iPhoto. In the worst case scenario, Apple could lose not just the Mac's current digital media advantage in the marketplace, but the ability to work with digital media at all. See Cory Doctorow's article on the broadcast flag in TidBITS-642 for more on this disturbing possibility.

< http://db.tidbits.com/getbits.acgi?tbart=06901>

Professor Gillespie illustrated how this could happen with a discussion of the awkwardly named Content Scramble System (CSS), used to prevent people from copying DVDs, and the DeCSS software created by a Norwegian teenager with help from others on the Internet to build a Linux DVD player.

(A brief aside: DeCSS violates the DMCA's anti-circumvention provisions, which ban devices or services that are designed primarily to circumvent copy prevention technologies, that have only limited commercially significant purpose other than circumvention, or that are marketed for circumvention. The DMCA was signed into law in large part to bring the U.S. into compliance with a pair of World Intellectual Property Organization (WIPO) treaties that require anti-circumvention protections in the copyright law of signatory nations. You might think Norway would be included among the nations signing these WIPO treaties, but in fact, only 37 countries have signed on, including the U.S. and Japan, along with the likes of Kyrgyzstan, Gabon, and Paraguay. We're not talking about full international support here, especially in contrast to the 149 signatories to the more general and long-standing Berne Convention for the Protection of Literary and Artistic Works.)

<http://www.wipo.int/treaties/ip/wct/>
<http://www.wipo.int/treaties/ip/berne/>

In particular, Professor Gillespie focused on three defenses used in the court case filed against Eric Corley, publisher of the hacker magazine 2600, by eight movie studios to prevent 2600 from publishing the DeCSS software. Although Eric Corley didn't create DeCSS, he made it available on the 2600 Web site. His lawyers' defenses focused on ways DeCSS might escape the anti-circumvention provisions in the DMCA, which was the law under which the case was being tried.

Let's look at these defenses, all of which the court eventually dismissed in ruling for the movie studios and enjoining 2600 magazine from posting the DeCSS code. A subsequent appeal also failed, and the defendants chose not to appeal again to the Supreme Court (probably a wise move - this particular case struck me as fairly weak).

<http://www.eff.org/IP/Video/MPAA_DVD_cases/2000 0830_ny_amended_opinion.pdf>
<http://www.eff.org/IP/Video/MPAA_DVD_cases/200111 28_ny_appeal_decision.html>

Create a Linux Player -- The primary defense that Eric Corley's legal team, funded by the Electronic Frontier Foundation (EFF), advanced was that CSS was reverse engineered and DeCSS written to further the development of a DVD player for Linux, which allegedly had no way of playing DVDs at the time (four players are available now; see the Linux Journal review linked below for details). Unfortunately, the judge deemed the defense utterly irrelevant because the DMCA offers no relief based on motivation. In short, if a technology violates the DMCA's anti-circumvention provisions, the purpose for which that technology was created simply doesn't matter. The judge also wasn't impressed with the fact that DeCSS is actually a Windows program, so although it could be argued that it was a necessary step in the creation of a Linux DVD player, it's a weak argument.

<http://www.linuxjournal.com/article.php?sid=564 4>

The obstacle that actually lies in the way of creating a DVD player is the lack of a key to decrypt the CSS encryption used on DVDs. The only way to come by such a key is to sign a contract licensing CSS from the DVD Copy Control Association (DVD CCA), a group made up of companies representing the movie studios, consumer electronics companies, and the computer industry. At $15,500, the licensing cost is not usurious, but the contract effectively prevents individuals and small organizations from licensing CSS. For instance, in the event of a material breach of contract, the licensee is liable for $1 million, and damages can grow to a maximum of $8 million. In addition, the contract prevents licensees from reverse engineering CSS or working in any way counter to the goal of CSS's protection of DVDs.

Put simply, the CSS license is the sort of thing only large companies can reasonably sign, so it's clear that the effect of the DVD CCA contract is to keep newcomers out of the cozy little club. Perhaps that wasn't a likely concern before the age of the Internet, but the rise of Linux and the open source movement shows that small, informal groups organized over the Internet can produce software that threatens the largest of companies.

The end result here is that innovation is stifled. Companies that license CSS cannot, even if they wanted to, produce products that consumers might like to buy, such as DVD recorders that could copy a DVD. That keeps new companies, niche players, or even independent programmers from competing with the consumer electronics giants with innovative features that in any way run afoul of CSS. So although the consumer electronics companies might not have minded consumers copying DVDs, since they would sell the equipment to make that happen, it's worthwhile for them to abide by CSS to eliminates potential competition.

Equally as problematic is that the CSS license's numerous requirements force the consumer electronics firms to be technologically responsible for regulating our movie viewing and copying behaviors for the studios. Signing this draconian contract is an all-or-nothing deal, so the movie studios have cleverly managed to pass off the dirty work of technological regulation on everyone else (they just produce the content; the DVD and player manufacturers must implement CSS). It's a big step toward a trusted system in which all the parties are bound by the CSS contract.

(As an aside, another effect of the CSS contracts is also to move the entire issue from the world of copyright law, where there is at least some presumption of needing to benefit the public, into the world of contract law, which doesn't give a damn about the public good. If this continues to the logical extreme, the concept of copyright, and unauthorized access to any content, could be locked up forever in simple contracts that lie underneath a trusted system's technologies, all backed up by the DMCA's anti-circumvention provisions.)

Perform Encryption Research -- Another defense that Eric Corley's lawyers put forth was that DeCSS was created as research into the CSS encryption method, since the DMCA does allow copy-prevention technologies to be circumvented for encryption research. However, the DMCA specifically requires that the encrypted copy be obtained lawfully and that the person performing the research make a good faith effort to obtain authorization in advance. In addition, the decryption tools from such research may be shared only with collaborators for good faith research purposes - in other words, distributing these tools publicly isn't kosher.

Note the words good faith above. In determining whether encryption research is good faith, the judge said the court must determine whether the results are disseminated in a way that advances the state of knowledge of encryption technology, whether the person is engaged in legitimate study of work in encryption, and whether the results are communicated to the copyright owner in a timely fashion. Deciding that none of these tests were true of Eric Corley, the judge dismissed out of hand the claims that DeCSS had protection under the encryption research exception to the DMCA.

Looking past the specifics of this case, consider the ways in which encryption research is considered to be in good faith. You must be a legitimate researcher, have a goal of advancing the state of knowledge, and have at least made an effort to get authorization from the copyright owner. Now think about how these requirements completely disenfranchise the interested individuals and the Internet technical geek community. What does it take to be considered a legitimate researcher - a white coat, thick glasses, and a job with a university, corporation, or government body?

What we're seeing here is how the DMCA in essence props up the status quo, denying that legitimate research could be done outside the halls of academia or a company's R&D department. Left on the outside are the crazy ones, the misfits, the rebels, the troublemakers... oh hell, go read the rest of Here's to the crazy ones from Apple's Think Different ad campaign for yourself. Whether we're talking about Apple's target audience or the open source community that has had Microsoft running scared is immaterial. The point is that the DMCA, supported by this court ruling, prevents that sort of person from doing anything that's not sanctioned.

<http://www.apple.com/thinkdifferent/>

Report as a Journalist -- A third defense that Eric Corley's lawyers offered was that posting DeCSS was protected by the First Amendment's protection of the press, and by the First Amendment in general. It took the judge significantly longer to dispose of this defense, since free speech issues are notoriously tricky, but in the end, he concluded that the speech in this case is content-neutral due to the functional nature of the DeCSS code. He then went on to note that regulation of content-neutral speech is acceptable if it advances the government's interests and that preventing the copying of digital works is a government interest due to the existence of the Copyright Clause in the U.S. Constitution and the importance to the U.S. economy of exporting copyrighted materials.

If you haven't looked at the Constitution recently, the Copyright Clause reads, To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Personally, I come down on the side of copyright existing to benefit society through the progress of science and the useful arts, and only secondarily to give authors and inventors exclusive rights. By my reading, the government interest thus lies in promoting the progress of science and the useful arts, and there's no question that the DMCA eliminates progress.

<http://www.law.cornell.edu/constitution/constit ution.articlei.html>

But I digress. The final result of the case was that Eric Corley and 2600 may not post DeCSS on their Web site or knowingly link their Web site to any other site on which DeCSS is posted. The decision was worded carefully so that linking in general would not be affected by the DMCA, but only in cases where those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.

In other words, it's acceptable to link to DeCSS if your intent is not to disseminate DeCSS, but merely to report on its availability, a fact I proved to my satisfaction with a trivial Google search on download DeCSS that provided over 17,000 hits, many of them still functional. You can verify this for yourself; just remember that DeCSS is only for Windows.

<http://www.google.com/search?q=download+DeCSS>

Here's where Professor Gillespie's argument becomes a bit more speculative. Although the court went no further in this case, he suggested that in any future cases in which the legitimacy of linking was called into question, he felt that the court would include in its deliberation the nature of the publication in question. For example, if the New York Times chose to link to DeCSS or some other technology that violated the DMCA (as in fact the San Jose Mercury News and Wired News have, in making the point that a ban on linking is seriously problematic), he felt that the court would have little trouble accepting the journalistic intent of the link. On the other hand, if some silly little electronic newsletter aimed at Macintosh and Internet users were to perform the same action, he was concerned that it would be more difficult to make the same defense. And if TidBITS wouldn't match up to the journalistic level of the New York Times in the eyes of a theoretical court, what about a blogger?

The end result would be that this court's interpretation of the DMCA could have the same effect of stabilizing the large news organizations in favor of the small newsletters and bloggers who are redefining what journalism means in today's Internet-enabled world. Speaking as someone who has done some of that redefining over the last 12 years, that worries me.

Regime of Arrangement -- In the end, Professor Gillespie argues that the true power of the DMCA is not so much related to its effect on copyright but these ways it weaves established organizations like large manufacturing corporations, research universities, and media conglomerates into what Professor Gillespie calls a regime of arrangement.

Don't assume that these established institutions are necessarily being co-opted against their will. Apple's Think Different campaign reads like a manifesto for the very people who are disenfranchised under this regime of arrangement, and yet Apple is a member of the DVD CCA, and, obviously, a licensee of CSS for the DVD hardware and software that comes with the Mac. The open source community has proved the power of teams of independent programmers as an alternative to the traditional software development model, not to mention the ivory towers of research institutions. Distance education hints at the decline of the traditional university, and entrenched media organizations have struggled for years with the way the Internet lets anyone be a publisher.

If there's one theme we take into the 21st century, it's decentralization, and you can see it everywhere. The PC overtaking the mainframe, Napster changing the face of music distribution despite the recording industry's best efforts, DeCSS causing the movie studios conniptions, Linux successfully challenging the mighty Microsoft's server operating systems, even the terrorist attacks on the World Trade Center and the Pentagon - all are examples of the power of decentralization and the ever-increasing clash between these forces of decentralization and the centralized power structures that control everything about our world. I have no answers here, but I'd note that despite the awesome power of both systems, I'm seeing the forces of decentralization making significant inroads.

What Can We Do? I've been attending a number of talks on copyright and intellectual property issues at Cornell over the last year. Almost without exception, the talks are warnings of dark times ahead (obviously, most are slanted toward the academic and library worlds), but at the same time, none have offered any suggestions for how we can work to reverse the efforts on the part of the Content Cartel to lock up our cultural heritage and stifle innovation for the future.

At a recent talk by Alan Davidson of the Center for Democracy and Technology (CDT), I chatted with Alan afterwards about this problem, and he agreed it was a concern, but had no silver bullet to prevent the hordes of well-funded Content Cartel lobbyists from having their way with our elected representatives. I, too, have trouble knowing what will be effective, but I offer these possibilities.

<http://www.cdt.org/>

• Spread the word to everyone you know. In most cases, the best argument is probably that the entire situation is a move on the part of big business to make everyone buy new consumer electronics and new copies of all of their content. If the Content Cartel gets their way, it will cost you. In some situations, making the intellectual commons argument - that our culture needs access to its cultural heritage to grow - can be effective, though it's generally too abstract. Try to avoid sounding like a zealot (I know it's hard: every time I hear of the latest attempt on the part of these companies to criminalize their customers, it makes me want to spit.)

• Support civil liberties organizations like the Electronic Frontier Foundation (EFF) and CDT that are working to protect our rights. As you'll see in the PayBITS block at the end of this article, I plan to donate all the proceeds from this article to the EFF to help do my part.

<http://www.eff.org/>

• Between 19-Nov-02 and 18-Dec-02, write to the Library of Congress with any evidence you can provide on whether non-infringing uses of certain types of copyrighted materials are likely to be adversely affected by the DMCA's anti-circumvention mechanisms. To get an idea of what they're looking for, I highly recommend reading Dan Bricklin's Copy Protection Robs the Future essay, in which he talks about his efforts to post an original copy of VisiCalc, the ground-breaking spreadsheet program he created.

<http://www.copyright.gov/1201/comment_forms/>
<http://www.bricklin.com/robfuture.htm>

• Express your concerns to your elected representatives whenever appropriate. EFF maintains an action center that makes it extremely easy to write your appropriate representatives. While you're at it, you might ask how it is that an entire industry is allowed to create a restrictive technology like CSS, require highly limiting contracts, and influence legislation (the DMCA). One of the industry witnesses in the Corley case testified that this three-pronged approach was exactly what the movie studios aimed at creating. Ironically, given that the end goal is a trusted system, this sounds a whole lot like the legal definition of a trust, which is a combination of corporations for the purpose of reducing competition and controlling prices throughout an industry.

<http://action.eff.org/>

I have to admit, I'm worried that none of this will be enough. The Content Cartel has the aura of celebrity on their side - they're protecting the rock stars and movie stars who sit at the pinnacle of today's society. They're the cool kids, whereas the people who campaign for civil liberties are often considered dull and overly earnest. My main ray of hope is that the reason most of the software industry voluntarily gave up copy protection technologies - primarily that consumers hated copy protection - will rise again, but unless we speak out now, all of our content may be locked up in a trusted system protected by the DMCA.

Ever heard of Mark Twain, aka Samuel Clements? Magically, he managed to keep a copyright on his shit. Or how about Lewis Carroll, aka. Rev. Charles Lutwidge Dodgson?

Do I have to use my real name on the form? Can I use a stage name or a pen name?

There is no legal requirement that the author be identified by his or her real name on the application form. For further information, see FL 101. If filing under a fictitious name, check the "Pseudonymous" box at space 2.

The DMCA is a bad law, and it gives any company fool enough to use it plenty of bad PR.

Not to start a flame war, but the DMCA isn't anywhere near as bad as most Slashdotters make it out to be. I've seen instances here of people saying things would or might be illegal under the DMCA that have nothing to do with that law. I'd suggest everybody-- opponent, proponent, whatever-- take a few minutes out and actually read the thing. It's not long. And while you're at it, you can invest a little more time and read all of Title 17. It's amazing to me how many people have the wrong idea about what the copyright laws actually say.

Just read the laws before forming an opinion, that's all I suggest.

The DMCA is a bad law, and it gives any company fool enough to use it plenty of bad PR.

Not to start a flame war, but the DMCA isn't anywhere near as bad as most Slashdotters make it out to be. I've seen instances here of people saying things would or might be illegal under the DMCA that have nothing to do with that law. I'd suggest everybody-- opponent, proponent, whatever-- take a few minutes out and actually read the thing. It's not long. And while you're at it, you can invest a little more time and read all of Title 17. It's amazing to me how many people have the wrong idea about what the copyright laws actually say.

Just read the laws before forming an opinion, that's all I suggest.

I've always respected librarians. They dedicate their lives to sharing information with people as freely as possible. I cheer the American Library Associationprotect individual's privacy and confidentiality, and fight against free limiting legislation like the Children's Internet Protection Act, the DMCA (PDF), and the Copyright Term Extension Act of 1998. They've been fighting to keep information free longer than the internet has been around. Democracy requires an educated citizenry, and libraries make it their mission to spread knowledge to everyone, regardless of race, social status, or wealth. Library's are a geek's best friend.

I hate to say it, but no one has said it before me: READ the notice of inquiry BEFORE you comment! In it is a list of issues that were confused during the last filing, what the Library of Congress *can* change, and what the Library of Congress *cannot*.

If you filing a comment without reading this straightforward (albeight long) 19-page document, and you submit a comment that does not match its formatting/requirements or goes off base, chances are you will be IGNORED.

So please, read what the Library of Congress can and cannot do as well as how to format your submissions *before* the time to submit comments arrives, so when you do submit a comment, it will be taken in a good light.

Intent, and due process

For intent, the it must be a defense to the DMCA that if the intent was to exercise a fair use right, then it is allowed. If it meets certain criteria (news commentary, satire, education, or other fair use allowable exceptions) then arguments over how much of original article was quoted (as an example), then it must be considered prima facia evidence that the use falls under fair use, and therefore, due to intent, of the alleged infringer, the complainant in a DMCA case must overcome the prima facia threshold to prove a violation of the DMCA.

Due process:

From the previous stories and posts on slashdot of ISPs receiving demand notices of shutdowns of customers for DMCA violations, there must be due process prior to shutdowns. Currently, as reported on slashdot, and as testified to in Congressional Committee hearings, the MPAA and other leeches are sending demand notices to ISPs alleging that account holders, identified by IP address, are sharing copyrighted works. They demand the immediate shutdown of the accounts. Some ISPs are capitulating, some are shutting down only the most egregious violators after negotiating with the leeches, and some are holding out a little more. What is happening in this process is that the account holder is not receiving any notice, the plug is just being pulled.

Testimony has been heard in Congress of accounts being shut down without notice from account holders whose child had written a book report on Cinderella on one case, Snow White on another case, and Lord of the Pigs in another case. In all three cases, the leeches alleged that the account holders were trading copyrighted works. In all three cases, the accounts were shut down.

If my child writes a book report on my computer, based on a copyrighted work, does that give Jack Valenti the right to pull the plug on my dns servers, web servers (hosting other peoples' web sites, other peoples' email accounts, other peoples' voicemail services, other peoples' pager services, other peoples'...

There must be due process for this procedure. The internet is no longer a luxury. Children use the internet for research for school. Parents and teachers use the internet for communicating about their children, school closings, emergencies, and more. On September 11, cellular sites were overloaded, and cell phone service was knocked out for most of NYC. But the internet stayed up. People who died in the WTC were able to get email out to loved ones. People who survived were able to notify relatives that they were safe, and were on their way to sleep at a co-worker's home, or stay at a bosses' office, home, whatever. Children were able to contact their parents and tell them they had made it out of ground zero and were with their teacher. Libraries have argued to protect the rights of people to access pornography on their computers, and against filtering software, because people have the right to access the internet, it is a necessity, and they can access at the internet if they can't afford a computer. Laptops are now standard requirements at Universities.

Running a web site on your server? Does your child access the internet on your small home network? Can you afford to have your web site taken down without notice because your small ISP can't afford to fight the leeches' deep pockets? Care to guess how long your site will be down while you make arrangements to find another ISP, negotiate the price for additional static IP addresses, dns server use for your site, changing the registrar info for new dns servers, changing the dns server entries, having the information from the dns servers filter through the internet so your site is recognized once again by name not number?

If you make a living off of your site, I doubt you can afford to have the plug pulled on it for what could turn out to be a minimum two week period of downtime, and the associated costs of a new isp, deposits, minimum contracts, lost time, lost profits and more.

There must be due process before a disconnect is allowed. The due process time must be equal to whatever filing time periods are given to the leeches. Nothing less. During this due process, it must be structured to allow the account holder to dispute the allegations, and to fill out the form that transfers liability from the ISP to the account holder, thereby forcing the leeches to go after you instead of the ISP (which is all the ISP really wants, a transfer of liability), and which will therefore keep your internet connection up.

Who would fill out the form ? Since I run a "news site" or blog or whatever the current terminology is in fashion at the moment, and am therefore a reporter and publisher who quotes other news sites, it is therefore very likely that at some point in the future, I will be accused of a DMCA violation. I will not view it as such, I will view it as a Fair Use issue, news commentary. The only thing that will be at issue is how much I quoted, and whether the amount that I quoted falls under fair use or not. Since I'm willing to take the liability risk on what I publish, and since I don't want my plug pulled, I would fill out the letter as the law provides , but currently, the DMCA, as the leeches are applying it, does not even require my notice and opportunity to respond in this fashion, or give me the ability of defending my right to connectivity. This must change.

As to the other problems with the DMCA, that will be dealt with as the issues arise. But we must defend Fair Use at every corner, and take every opportunity and opening given to us to try and restore Fair Use rights to the public.

So, I am not a lawyer. A lawyer needs to take my arguments above on intent, on prima facia evidence, and on due process, and make them into a lucid statement, and submit them. Thank you. From all of us.

Maybe slashdot should consider revoking its DMCA subsection 512(c) registration. This subsection limits the liability of a service provider.

That's more than a month away. That'll slip right off my radar screen unless I have a reminder.

Put it in your PDA. In your favorite scheduling software. In you little black book. On your fridge. Whatever you like, but do it NOW. This is a really good way for the evils of the DMCA to be entered into record, even if (for now) it's just a formality.

-S

Finally, the purpose of Copyright is not to protect the economic rights of a creator; the actual Article from the Constitution (Article I, section 8), states
The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
By giving protections to creators, there is incentive for them to create and share those creations with the rest of society "to promote progress of science and useful arts".

On a side note, if you ever have an opportunity to take a course/workshop/etc. on copyright, I highly recommend it. I took a 2 1/2 course last summer though the U of Mich and it was fascinating -- I didn't know how much I didn't know!

Finally, the purpose of Copyright is not to protect the economic rights of a creator; the actual Article from the Constitution (Article I, section 8), states
The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
By giving protections to creators, there is incentive for them to create and share those creations with the rest of society "to promote progress of science and useful arts".

On a side note, if you ever have an opportunity to take a course/workshop/etc. on copyright, I highly recommend it. I took a 2 1/2 course last summer though the U of Mich and it was fascinating -- I didn't know how much I didn't know!

Even in the legal sense copyright infringement is treated as a form of theft when the party is subject of criminal prosecution:

http://www.copyright.gov/title17/92chap5.html#506

http://www.techlawjournal.com/cong106/copyright/De fault.htm

However, there is code I write for my employer, just like photographs I take on commission for someone else. For this "work for hire" it is up to the person paying to decide what the copyright on the work is. (I might try to convince them to go the free route, but ultimately it is their choice.

Who told you this? I believe you're incorrect. See the copyright law (I'm assuming you're in the US.):

A "work made for hire" is-

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....

Note that to fall under case (2) there would have to be an explicit written agreement, and note that as a wedding photographer you are probably not an "employee", hence don't fall under case (1). See, e.g., this summary from the copyright office, for a brief discussion of the relevant definition of an employee.

--Bruce F.

However, there is code I write for my employer, just like photographs I take on commission for someone else. For this "work for hire" it is up to the person paying to decide what the copyright on the work is. (I might try to convince them to go the free route, but ultimately it is their choice.

Who told you this? I believe you're incorrect. See the copyright law (I'm assuming you're in the US.):

A "work made for hire" is-

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....

Note that to fall under case (2) there would have to be an explicit written agreement, and note that as a wedding photographer you are probably not an "employee", hence don't fall under case (1). See, e.g., this summary from the copyright office, for a brief discussion of the relevant definition of an employee.

--Bruce F.

...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, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

It was rather difficult finding this. Everything I found was either not specifically relevant, or conflicting. This reference seems to be the most clear description.

Basically, it says that only the owner of the program is allowed to make a temporary copy, but a licensor is not. link. Google's PDF to HTML of the link

And, a link on software copyright that I thought was interesting, but doesn't specifically relate to anything. link

So I'm listening to WFMU while Station Manager Ken has another of his little tirades about the RIAA and how they're screwing the world over (and they are, unless owing the RIAA $500 a year for webcasting a station with no music on it makes sense to you), and it hits me: what about VoIP? I can't decipher the legalese on the page, but it doesn't strike me as particularly far-fetched that after quashing webcasters, Rosen et al will sic the attack lawyers on businesses who have the audacity to play hold music on their VoIP phone systems.
If not, hello loophole!

So I'm listening to WFMU while Station Manager Ken has another of his little tirades about the RIAA and how they're screwing the world over (and they are, unless owing the RIAA $500 a year for webcasting a station with no music on it makes sense to you), and it hits me: what about VoIP? I can't decipher the legalese on the page, but it doesn't strike me as particularly far-fetched that after quashing webcasters, Rosen et al will sic the attack lawyers on businesses who have the audacity to play hold music on their VoIP phone systems.
If not, hello loophole!

The argument is that by making a copy of the software to have it run on your computer, you're making a copy of the whole piece of software, beyond fair-use rights.

And I quote: from this page:

US Code Section 17, article 117:Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy.-Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

When I buy a piece of software, a copy of it comes on a disk. I do have a copy. I own the media. I do own a copy of the software. I may not be able to use it due to a license, but I do own a copy since it is clearly in my possession and it is a copy. This section says that I can make copies if I need to be able to use the software. So, there really isn't a need to have licenses. :)

They will argue that you don't own a copy, but if I go to a store and I pay money for a box and a copy of the software is on a disk in that box, then yes I do own a copy of the software. I own the little shiny disk, and contained in that disk is a copy of the software.

Here's the proof Notice the row with the heading "Combined minimum fee." I'm not sure who that money goes to, but even if you're streaming YOUR OWN MUSIC, you pay $500. Does that make any sense to anyone???

Also, I did some quick calculations regarding the back fees that are due. Assuming someone has been streaming music nonstop since October 28, 1998 (the earliest date for which back fees are due), with 5 minutes per son (which seems overly long), I figure that person owes $29 307.60. Most people don't have that kind of money.

There is no problem with getting a business model, or even adding commercials. The problem is that CARP rates are REDICULOUSLY HIGH. Look at this.

CARP Rates - Final

What it boils down to is this... Are you a friend of the RIAA? If not, prepare to pay the price. There is no way that any webcaster can stay around at these rates... And that's the point. They want them to be even higher so that those that might barely get by also don't have a chance. That way, only those in bed with the RIAA that play what THEY want you to hear can afford a license... A different license that doesn't apply to the normal CARP rules.

I should just copy this post so that I don't have to retype it when someone doesn't know what a derivative work is. Only the original creator or someone he delegates can create a derivative work under copyright law. Circular 14 from the US Copyright Office clarifies everything.

Fair use is a much fuzzier topic but I would agree that it is one thing to modify your own copy and something totally different to distibute it (for free or pay) en masse.

:sigh:

Title 17, section 106, says, in whole (emphasis mine):

Subject to sections 107 through 121, 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.