Slashdot Mirror

Actually, this is exactly the problem that Judge Rakoff had with MP3.com.

Here's a few lines from the comments he made on May 4th (full text here)

• Defendant argues, however, that such copying is protected by the affirmative defense of "fair use." See
• 17 U.S.C. 107. In analyzing such a defense, the Copyright Act specifies four factors that must be considered...

  Regarding the first factor -- "the purpose and character of the use" -- ... involves inquiring into whether the new use essentially repeats the old or whether, instead, it "transforms" it by infusing it with new meaning, new understandings, or the like.

  • See, e.g.,
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); Castle Rock, 150 F.3d at 142; see also Pierre N. Leval, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1111 (1990). Here, although defendant recites that My.MP3.com provides a transformative "space shift" by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium -- an insufficient basis for any legitimate claim of transformation. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (rejecting the fair use defense by operator of a service that retransmitted copyrighted radio broadcasts over telephone lines); Los Angeles News Serv. v. Reuters Television Int'l Ltd.. 149 F.3d 987 (9th Cir. 1998) (rejecting the fair use defense where television news agencies copied copyrighted news footage and retransmitted it to news organizations), cert. denied, 525 U.S. 1141 (1999); see also American Geophysical Union v. Texaco Inc., 60 F.3d 913, 923 (2d Cir.), cert. dismissed, 516 U.S. 1005 (1995); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1530-31 (S.D.N.Y. 1991); see generally Leval, supra, at 1111 (repetition of copyrighted material that "merely repackages or republishes the original" is unlikely to be deemed a fair use).

  Regarding the fourth factor -- "the effect of the use upon the potential market for or value of the copyrighted work" -- defendant's activities on their face invade plaintiffs' statutory right to license their copyrighted sound recordings to others for reproduction. See 17 U.S.C. 106. ... [The] defendant argues, its activities can only enhance plaintiffs' sales, since subscribers cannot gain access to particular recordings made available by MP3.com unless they have already "purchased" (actually or purportedly), or agreed to purchase, their own CD copies of those recordings.

  Such arguments ... are unpersuasive. Any allegedly positive impact of defendant's activities on plaintiffs' prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs' copyrighted works. See Infinity Broadcast, 150 F.3d at 111. This would be so even if the copyrightholder had not yet entered the new market in issue, for a copyrightholder's "exclusive" rights, derived from the Constitution and the Copyright Act, include the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable.

That last paragraph doesn't seem right to me. The Infinity Broadcast case is very interesting though.
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If the music industry gets this in front of congress, runs a quick search and shows that 98% of all available songs on the Napster network are copyrighted it will absolutely destroy any credibility

According to the ninth circuit court you have the legal right to load a MP3 of a copyright song that you own on CD. I remember reading that off a link from slashdot, but couldn't find it in slashdot's search, but here is a diffrent summary http://www.nylj.com/tech/091399t3.html, unfortunitly it doesn't really discuss space shifting. As I recall the judge essensally ruled that owning the CD was like owning a "right to use", so owning Ray of Light on CD gave you the right to listen to it in MP3 or other forms. He went on to rule that it didn't matter if you gained the other form from a source that wasn't allowed to listen to it (which I found supprising). I wish I had kept a link to the ruling. Does anyone have one?

MP3.com's "BeamIt" relys on this ruling (as far as I can tell).

So you can't just point to the large number of copyrighted works in Napaster's list, you have to show that the people downloading the songs don't have the legal right to do so!

In the decision, the findings for the twelve claims were:

1. Impairing computer facilities in violation of the Computer Fraud and Abuse Act, 18 U.S.C. 1030(a)(5);
   First Claim: $147,613.50
2. Exceeding authorized access in violation of the Computer Fraud and Abuse Act, 18 U.S.C. 1030(a)(5)(c);
   Second Claim: $147,613.50. This recommended award is in the alternative to the amount recomended on AOL's first claim.
3. Violation of the Lanham Act, 15 U.S.C. 1125(a) (false designation of origin);
   Third Claim: $413,645.71. $129,673.50 of this sum is in the alternative to the amounts recommended on AOL's first and second claims; the balance ($283,972.21) is in addition to the amounts recommended on AOL's first and second claims.
4. Violation of the Lanham Act, 15 U.S.C. 1125(c)(1) (dilution of interest in a famous mark);
   Fourth Claim: No damages recommended.
5. Conversion or trespass to chattel under New York and Virginia common law;
   Fifth Claim: $200,000. This amount is in addition to the amount recomended on the first, second and third claims.
6. Violation of the Virginia Computer Crimes Act, Va. Code Ann. 18.2-152.3;
   Sixth Claim: $147,613.50. This recomended award is in the alternative to the amount recomended on AOL's first, second, third and fifth claims.
7. Common law misappropriation of name and identity;
   Seventh Claim: No damages recommended.
8. Violation of the New York General Business Law, 130, 349 and 350;
   Eighth Claim: No damages recommended.
9. Common law fraud under Virginia law;
   Ninth Claim: No damages recommended.
10. Unjust enrichment under Virginia law;
    Tenth Claim: $129,673.50. This recomended award is in the alternative to the amount recomended on AOL's first, second, third, fifth and sixth claims.
11. Common law nuisance under Virginia law; and
    Eleventh Claim: No damages recommended.
12. Violation of the Washington State Unsolicited Commercial Electronic Mail Act.
    Twelfth Claim: No damages recommended.

==================================
neophase

That they should read the full Findings of Fact and then comment.

MS have till January to contest what the judge has written, until then you can take it as Fact.

And if this is the case MS have been very very naughty. I don't know how you got a score of 3 as you seem to be a borderline Troll post.

Finally, a voice of reason.
With the government getting it's nose into the computer business, it will set a dangerous precident that big time success is dangerous.
Has anyone read the court's definition of the market? Intel-based PC operating systems. Which completely excludes MacOS or OpenVMS and the majority of Unix systems (not counting Linux).
Since defining the market is a subjective endevour, one can define "ISPs" as a service provider with dialup access in every state in the Union. Isnt AOL a monopoly (by that definition)? How about "retirement plans"? Is Social Security not a monopoly? You can't opt out of it. It is there.

Dont let your animosity (which may be understandable) cloud your judgement of the law.

"You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered." -LBJ