MGM Concedes Some Fair-Use Rights Exist

jambarama writes "MGM seems to have given a little in the Grokster case. After getting nailed on the possible implications of banning P2P software, they've now admitted it is perfectly legal to rip one's own CD and store it. Is this a return to the stripped down 'fair use' rights or a temporary court concession?"

Comments

Thank you, MGM

[Dorsai65]

for giving me my rights back.[/sarcasm]

Re:Thank you, MGM

[Anonymous Coward]

The problem here is that MGM is admitting it to keep the court itself from saying it. Once the case is over MGM can always go back to claiming otherwise. And this way the court will not have to explicitly uphold our fair use rights again. So, it makes a lot of sense for MGM to say this at this point. They don't want fair use validated any more by the court than minimum.

Re:Thank you, MGM

[matthewcharlesgoeden]

Fair use isn't a statutorily defined right. It is a limitation on a copyright holder's rights. [17 USC 107 -- read the statute ./ers]

(yeah, I know I replied to a 'funny' comment with some seriousness -- my bad. )

This comment if just an FYI to everyone who feels that Fair Use ranks right up there with Privacy -- opps, wait a minute, Privacy isn't expressly listed in the Constitution either. Ok, maybe I should have used 'Free Speech' as a sarcastic comparison. My overall point is that far too many people get far too excited when it comes to talking about protecting Fair Use, and calling Fair Use a right is one of those 'thangs.

Re:Thank you, MGM

[mOdQuArK!]

It is a limitation on a copyright holder's rights.

You mean a limitation on a copyright holder's privileges.

Nobody has a "right" to control copying (even given the misleading name for it) - they are granted the privilege of controlling it with the goal of benefiting society.

Re:Thank you, MGM

[Anonymous Coward]

Hmm, actually fair use is derived from our Freedom of Speach, a right reserved to us by the first admendment.

Well the copyright holder's rights are defined in the statues as well, so I guess in the same way its not a defined right. So by your logic, the origional right is of the people.

Of course, there is that nice 9th admendment that can be used to provide whatever rights to the people as the courts want. :P

Re:Thank you, MGM

[Anonymous Coward]

This comment if just an FYI to everyone who feels that Fair Use ranks right up there with Privacy -- opps, wait a minute, Privacy isn't expressly listed in the Constitution either

If the government would be correctly playing by the rules of the 9th and 10th Amendments, rather than justifying becoming the reincarnation of King George (who can do whatever he wants by calling it regulation of interstate commerce) then there'd be no arguments about privacy because they wouldn't be engaging in all of the activities which get everyone all worked up over it.

Just as the media companies never bother to point out that there are legal uses for rip/mix/burn, you and your kind never bother to point out the legitimate argument against government intervention into every aspect of our lives.

Re:Thank you, MGM

[TIMxPx]

This whole crusade against file sharing is starting to piss me off. These companies buy up publishing rights and lobby to have copyright laws extend their monopoly/oligopoly into the next millenium, and then try to take down legal file sharing companies/programs/servers/users because it's the easiest way to enforce copyright law. Maybe we should outlaw FTP - that could also be used to distribute copyrighted material illegally. Better yet, why not eliminate all forms of media storage and sever all internet connections, because those things can be used to disseminate kiddie porn? It's time for these people to go after lawbreakers, i.e., people who take their copy of the lataest Metallica CD "Butt-Load", then rip it to mp3, then offer it to greedy little downloaders who don't really give a crap about Metallica, because the only thing the band ever did for them was offer a 17 dollar/pound CD once every 1.5 years, and give them the grand opportunity to purchase concert tickets at reasonable prices like 50 bucks/quid a pop. Honestly, i'm so sick of all this crap that if i can't use P2P programs to legally download free music anymore, i'm going to just listen to the music in my head and not support any of these "artists".

Now listening to (in my head):

Smurfs Theme Song

Re:Thank you, MGM

[timeOday]

A lot of freedoms aren't expressly protected by the Constitution, because the original idea of our govt. was that people could do whatever wasn't forbidden, and it was govt. that was limited to a specific list of behaviors.

Your post attests that this idea is dying out.

Re:Thank you, MGM

[Fjornir]

opps, wait a minute, Privacy isn't expressly listed in the Constitution either.

You missed the part about "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches..." I take it?

Re:Thank you, MGM

[xgamer04]

Privacy isn't expressly listed in the Constitution either.

From the US Constitution:

Article the fifth [Amendment III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Re:Thank you, MGM

[rpozz]

Maybe we should outlaw FTP - that could also be used to distribute copyrighted material illegally.

Don't give them ideas. If pirating stuff off FTP becomes popular, we could end up with crazy lawsuits, port 21 firewalled off (yes I know that wouldn't stop it) and other crazy ideas.

However, in a way, you can see why they're doing it. Suing individual users is totally futile, and it would be easier for them to take out the whole file-sharing system itself. Going to be an interesting lawsuit if they try and take out bittorrent - one of the only file-sharing tools that has a very large legal userbase. The whole situation is one giant mess, which could take years and years before the users and the content producers come to some sort of 'arrangement'.

Re:Thank you, MGM

[Trillinon]

Nor shall we forget the all important: Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. If the people want the right of privacy, that power is granted to them.

Re:Thank you, MGM

[matthewcharlesgoeden]

I agree ideologically with your premise; however, the black letter of copyright uses the words "exclusive rights[.]"

Re:Thank you, MGM

[glsunder]

You missed the part about "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches..." I take it?

I think we all miss that.

Re:Thank you, MGM

[Fjornir]

Well said, sir.

Re:Thank you, MGM

[plague3106]

You do realize that we have far more rights then those spelled out the Bill of Rights.

Copyright however ISN'T a real right; it exists at the sole discression of Congress (read the Consitution).

Re:Thank you, MGM

[houghi]

No Soldier shall, in time of peace

There is a war on drugs. There is a war against terrorism as well. What is going on in some countries is also not really peace and the US is involved in those.

unreasonable searches and seizures

With the new laws, no searches or seizures are unreasonable.

Re:Thank you, MGM

[plague3106]

Indeed. Its just like the idea that its ok to restrict speech that might cause 'clear and present danger.'

No where is it written that the 1st amendment excludes that kind of speech. Instead, it was decided by a court case, which later court cases referenced. Although there is no law stating such (if there is, i'd like to see the relevent Code identifiers) it is commonly taken as 'law.' Basically it means that the courts have created a law..not Congress. This is clearly outside the scope of the court's power.

Re:Thank you, MGM

[Anonymous Coward]

Heh. War on Drugs. War on Terrorism. War on Poverty. War on CO2 Emissions.

Those are really "war" wars for the purposes of the Constitution. Or at least, I sure hope they're not... have we really lost our grip on reality to that extent?

It was my understanding that it wasn't a "war" war unless Congress actually declared war, a function that Congress has not exercised since 1941.

Re:Thank you, MGM

[bill_mcgonigle]

This comment if just an FYI to everyone who feels that Fair Use ranks right up there with Privacy -- opps, wait a minute, Privacy isn't expressly listed in the Constitution either.

Pragmatically, in this case what matters is what the SCOTUS thinks. Here's one opinion:

"The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."
- Sandra Day O'Connor

A popular quip around the SCOTUS, due to its divided nature, is "let's just take the case to Sandra Day O'Connor".

Re:Thank you, MGM

[splatter]

Thank god someone paid attention in poly sci class..

TimeOday is absolutly correct!

For all thouse that think the goverment gives us rights and not vice versa, please read this:

"The Declaration of Independence: A Transcription

IN CONGRESS, July 4, 1776."

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. "

One more time....
"that they are endowed by their Creator with certain unalienable Rights....."

Thats right folks God (Alah,Jehovia,Buddah, or the door knob you worship) gave us rights.... not the goverment.... We give the goverment rights....

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government"

Yes you read that correct the right of the people to abolish or change a goverment that doesn't follow Our will is written into the document. A safty valve if things go horribly wrong since remember they were escaping from a tyrranical goverment and didn't want the same thing to happen here....

dp

Re:Thank you, MGM

[BlueHands]

it's funny cause it's true.....

i am going to go cry now,excuse me....

Re:Thank you, MGM

[ewieling]

This one has not been in effect (for all practical things) for a VERY long time. The feds just pass federal laws that obviously are not permitted because of the 10th amendment, but nobody does anything about it. I suspect that's because the feds have more money and more guns and everyone else.

Re:Thank you, MGM

[AndrossUT]

I also don't see how we can declare wars on such... intangible things. I thought a war was held between two or more nations/states/designated groups.

In another thought how can our presence in Iraq be considered part of our 'War on Terrorism'? I do recall Saddam not allowing certain groups into his country and being somewhat against the whole 'terrorism' thing. Of course if you consider how he ruled terrorism, then aren't most of our politicians guilty of terrorism to some stretch of it's meaning? Just some thoughts.

Re:Thank you, MGM

[utlemming]

However, the Constitution, in Amendment 9, spells out that there can exist other rights.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Re:Thank you, MGM

[kf6auf]

They pass whatever laws they want for one of two reasons: either the law affects interstate commerce (pollution, segregation, production, etc.) or they simply require a state to pass a law they want but cannot pass themselves by enacting a requirement for funding (national speed limit for example). Until Lopez v. United States in 1995 the Court allowed just about anything under the commerce clause but eventually ruled that the connection between the law and interstate commerce needs to be a bit more direct than that between interstate commerce and banning handguns in school. Keep in mind that the Supreme Court does limit things when it feels like it.

Re:Thank you, MGM

[Gentlewhisper]

Thats right folks God (Alah,Jehovia,Buddah, or the door knob you worship) gave us rights.... not the goverment.... We give the goverment rights....

What if you are atheist? :P

Re:Thank you, MGM

[Anonymous Coward]

Then you were created by mommy and daddy, and they give you those rights :-P

Re:Thank you, MGM

[Holi]

Unfortunately the Declaration of Independence is not a legal document, It does nothing to define your rights or privledges and provides you no legal protection. It may be a defining document in the US's history but nevertheless what is written there means nothing in court.

Re:Thank you, MGM

[Anonymous Coward]

Actually you are quite wrong in all important respects. The fact is that in interpreting the constitution the "supporting documents" are routinely consulted in order to fully understand the intent of the framers.

And in support of the point under question I would recommend you read Amendment X a couple of times until you understand what it means (especially in context of the historical documents also authored by the framers of the constitution).

Re:Thank you, MGM

[Anonymous Coward]

Fascist.

Re:Thank you, MGM

[Anonymous Coward]

Amendment IX too.

Re:Thank you, MGM

[Phanatic1a]

opps, wait a minute, Privacy isn't expressly listed in the Constitution either.

It doesn't have to be. The Constitution serves to expressly detail the few powers that the Federal government actually has, and the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

If you don't get that, you shouldn't be engaging in Constitutional analysis.

Re:Thank you, MGM

[ScrewMaster]

Well, he did mention a door knob.

Re:Thank you, MGM

[BrainInAJar]

The founders of the constitution may "hold these truths to be self-evident" but I sure as hell don't. I find any talk of "self-evident truth" to be suspect at best. It's a cop-out when there's no reason for you to make claims that you aren't entitled to

If they're a priori, back them up. Show me how they exist as self evident.

Consensus by a bunch of old dead guys is not self-evidence

If there is a god, and he grants us inalienable rights, prove it.

the only truly self evident truths are mathematical in nature, and they're self evident only in so far as the structure that we've agreed upon for dealing with a fundamental similarity we find between groups of objects. Even math, then is only self-evident insofar as we agree upon certain conventions of mathematics

Re:Thank you, MGM

[Spock the Baptist]

So you need proof that the 'Axiom of equality' is true.

'Axiom of equality' For all x (x = x).

Re:Thank you, MGM

[Alsee]

Do you realize that 17 USC Sec. 107. - Limitations on exclusive rights: Fair use doesn't actually do anything? That it could be stricken from law and nothing would change?

Section 107 does not define or grant fair use.
Section 107 was first added to copyright law in 1976. Fair use was established by the courts in the early 1800's. It is impossible for a law passed in 1976 to grant or create something that had existed well over a hundred years.

If you check the 1976 congression record when 107 was added to the text of law you'll find the legislators explicitly stated that 107 was not intended to expand, diminish, or alter existing fair use in any way. That it was merely intended to reflect the existing fact of fair use.

If you read the text of 107 very carefully the only thing is actually enforces as a matter of law is "the fair use of a copyrighted work [] is not an infringement of copyright", period. The rest of the text merely gives a list of examples of things that are usually fair use, and the last half lists four examples a court shall consider in determining fair use. Courts are perfectly free to consider other factors, and courts routinely do consider other factors such as whether a use is "transformative". The courts are perfectly free to give the four listed factors zero relative weight if they wish. So the only part of the law that actually says anything binding is that fair use is not infringment.

There is a reason the law does not attempt to define or restrict fair use in any way, a reason the law allows the courts can define fair use however they wish. The reason is that fair use was established by the courts on constitutional grounds. The court had found that the raw text of copyright law was unconstitutional. That copyright law would be struck down as null and void if the courts did not invent 'fair use' to rescue copyright from being stuck down. The courts assumed that copyright law implicitly does not actually attempt to restrict what it claims to restrict. That copyright law implicitly flees in the face of fair use, to avoid being unconstitutional and invalidated.

Most of fair use was established on First Amendment grounds. The raw text of copyright claims to restrict any and all copying. The raw text of copyright claims it would be infringment for a critical review in a newspaper to copy even a small excerpt of text for that review. The raw text of copyright law claims to make effective criticism illegal. This is an unconstitutional prohibition of vital free speech. In this case it is also a violation of the copyright clause of the constitution stating that the purpose of copyright is to promote progress. Suppressing effective review and criticism would not only burden free speech, it would be an intolerable hinderance of progress. Doubly unconstitutional, and making copyright law doubly invalid if it actually restricted what it claims to restrict.

Fair use is the embodiment of Constitutionally protected rights. Copyright does not grant ot define fair use, it is fair use which sweeps away and restricts copyright. Fair use is the only thing saving copyright law from being null and void. Any attempt to pass a law to infringe or revoke fair use use would be unconstitutional.

Fair use does indeed trump copyright.

-

Re:Thank you, MGM

[Anonymous Coward]

Keep in mind that the Supreme Court does limit things when the gun lobby pays it to.

Re:Thank you, MGM

[Daengbo]

If you want to know the "proof," read Locke. They did. In fact, almost every educated person of the time did, and it was the big philosophical discussion of the period. There's never really anything but a priori and derivatives in philosophy, kind of like in Euclidian geometry.

Re:Thank you, MGM

[BrainInAJar]

Actually, I'm familiar with the writings of John Locke. Furthermore, there ARE a postereori proofs in philosophy, most of them come from the philosophical tradition of empiricism of which John Locke is concidered a member of.

Furthermore, the "proof" given by John Locke is paper-thin and rests soley on there being a creator, unless one wants to examine the dubious claims as to the original state of mankind pre-large society. Since acheological evidence shows that man was never, in fact, a free individual running around in a romanticised "state of nature" as Locke's philosophical inquiry in to the matter depends on, it is safe to assume that John Locke's philosophy can be safely disregarded by any right-thinking individual.

Philosophy has long since discarded the idea of natural rights (with a couple deviations, notably Libertarianism, although Nozick uses different justification for his rights than the state of nature of Hobbes, Locke, and Rousseau), The only remnants of a true-to Locke version being enshrined in the constitution and declaration of independence of the USA.

Re:Thank you, MGM

[Daengbo]

Hey, I'm not defending Locke, just saying that the writers were referencing him, so didn't feel the need to include them, much in the same way that writers do today.

Re:Thank you, MGM

[Anonymous Coward]

i'm guessing you're not a lawyer. because if you were, you'd know that what you just said is flat out wrong. and you'd know that after any class in law.

the court's power is to interpret statutory law. and when there are gaps, the courts fill it in. it's called "common law" or "judge made law" and it's used in the u.s., and has been for a while. congress can't cover everything. legal precedent counts for something.

it is within the court's power to refer to legal precedents and to make new ones when there is no applicable statutory law.

you're a moron.

Re:Thank you, MGM

[sepluv]

An exclusive right is the opposite of a right as the holder of it is allowed to remove others rights--it takes away everyones rights except the holder. The word exclusive implies `stopping the majority from...'.

Re:Thank you, MGM

[Doc Ruby]

Congress has not declared "war", as defined in the Constitution, on anyone currently. Even the vogue of transferring authority to invade a country, like Iraq, on the President's whim, is not actually "war". There's some serious debate whether the Iraq invasion is even legal, given that Congress voted only to grant the president the power "to protect the security of the United States", which he did not - that security was not threatened by Iraq. White House PR can declare "war" on any abstract noun it likes, like "poverty", but that doesn't entitle it to quarter soldiers in our homes, or any other war powers. Whether it exercises those powers anyway is left as an exercise to the reader.

Re:Thank you, MGM

[cpt kangarooski]

Or put more simply, an exclusive right is a right to exclude others.

Interestingly, copyrights don't confer a right to do anything; that falls to the rights of free speech and press, as guaranteed by the First Amendment.

A corollary of this is that everyone essentially has the same right to e.g. reproduce a work as the author does. However, for the term of copyright, most people are generally excluded from doing so. Upon expiration of the copyright, the public doesn't gain rights, but is no longer impaired from exercising the rights they've had all along.

Re:Thank you, MGM

[Anonymous Coward]

Judges making laws is standard practice in pretty much every country with a court system. It's called "common law", and has the force of a statute. Statutes cannot account for every situation, so common law is an accepted practice that allows courts to make decisions, but they're still based on current laws (unless the law itself is being challenged) and the Constitution.

Re:Thank you, MGM

[Anonymous Coward]

Wow. Do you understand what a priori means? It means it's an assumption or a postulate. It is not backed up. That's the idea, it's a starting point.

Interestingly, nobody said they *were* self-evident, but only that they held them to be, essentially saying "These are our assumptions, they seem reasonable to us. Let's work from there."

Stop being a fucking pedant.

Re:Thank you, MGM

[Anonymous Coward]

Zing!

Re:Thank you, MGM

[gilroy]

Yeah, I hate it when people adopt misleading terms simply to steer an argument.

Like "intellectual" property for legal proscriptions on actions instead of actual property.
Like "digital rights management" for software designed to retrict my rights.
Like "piracy" for copyright infringement.

I don't believe in unilateral disarmament. And Fair Use also exists in common law -- which is entirely valid, despite your slippery attempt to restrict disucssion to "statutorily defined rights".

I'd also remind people, without getting too hyperbolic, that this republic was founded after a revolution whose goal was to secure common-law, extra-statutorial rights...

Re:Thank you, MGM

[spacecomputer]

Possibly the most intelligent post I have ever read on Slashdot.

Re:Thank you, MGM

[hesiod]

> Of course if you consider how he ruled terrorism, then aren't most of our politicians guilty of terrorism to some stretch of it's meaning?

Yes, you can also stretch it just slightly further and include just about all media, mostly TV.

Re:Thank you, MGM

[hesiod]

> If pirating stuff off FTP becomes popular

... again. I don't know how long you've been on the Internet, but FTP was THE method of copying software years ago. Usually that was tied in with IRC chat or something.

Re:Thank you, MGM

[Dun Malg]

Nor shall we forget the all important: Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. If the people want the right of privacy, that power is granted to them.

I think the 9th is more applicable there. It basically says that the constitution is not an exhaustive list of the people's rights and that there are many other rights not enumerated. It's basically yet another way to hammer home that the constitution was meant to be an enumeration of the limited powers of the federal government, and nothing else.

Re:Thank you, MGM

[Dun Malg]

Keep in mind that the Supreme Court does limit things when the gun lobby pays it to.

Don't be a dimwit. Supreme court justices are appointed for life, not elected. Furthermore, they're highly paid, so there's neither motive, nor real opportunity for them to accept bribes. You're thinking of congressmen and presidents.

Re:Thank you, MGM

[splatter]

how in the hell did this get modded as a troll?

What is going on around here

Re:Thank you, MGM

[splatter]

Hehe yes the door knob comment was for the athiests...

I guess that damn AA programing just came out huh. To bad people won't see it cause the mods deemed explaining the DoI as a troll

DP

Re:Thank you, MGM

[splatter]

"It's a cop-out when there's no reason for you to make claims that you aren't entitled to"

Huh what claim are you not entitled to?

Why should the burdon of proof of god be attached to cutting and pasting what every american child should have read by the time they are through high school. This isn't math bud, it's poly sci the two are not related.

If you choose to discredit the DoI then that is your issue, although technically it makes you a brit, if you live in the USA.

That makes you one brit in the land of oh.. how many US citizens? Your choice, mine is for the freedom & rites granted by our countries founders.

Hey if you don't want

Re:Thank you, MGM

[Anonymous Coward]

Unless x is null.
The exception that proves the rule.

Re:Thank you, MGM

[BrainInAJar]

The claim you're not entitled to is holding that rights are natural & self evident.

Even Descartes justifies the claims he holds self-evident, rather than just assuming them and working from there. The framers of the DoI, not so much.

And I'm not american, i'm a philosopher in canada.

Don't get me wrong, I Like liberal theory, but I think that the way the constitution framers justify it is logically inconsistent, so I can't in good faith allow it to pass uncritically

Re:Thank you, MGM

[plague3106]

No, I'm not a lawyer you're right. However 'case law' as you put it isn't defined in the constitution either. There's no basis for allowing it. Calling it 'common law' implies it is law, and the constution IS clear on who may make laws, and that clearly lies within the power of congress.

I think the idea is that there shouldn't be a need for congress to cover much of anything at all. That except for the few powers listed, the people and the states have jurisdiction over everything else.

Remember, just because its been done for the past 150 years or so (I don't think using case law was common just after the country was formed) doesn't mean that its right and falls within the bounds setup by the constitution. After all congress orginally only needed to meet for about a month out of the entire year.

Perhaps you're the moron because you so quickly lost sight of the original intent. Oh, and please point out inthe constitution that its ok for judges to make common law or refer to legal precidents (which may be ok, but IGNORING law in favor of precidents is not, especially since we now have cases of precident directly contradicting law).

Re:Thank you, MGM

[xgamer04]

No Soldier shall, in time of peace ... nor in time of war, but in a manner to be prescribed by law.

With the new laws, no searches or seizures are unreasonable.

That's for the judicial system to decide. (not that I'm confident about it)

Re:Thank you, MGM

[ScrewMaster]

John Ashcroft hangs out here on Slashdot now and then, I understand.

Stipulation

[HexRei]

According to the article, it's only legal if you also attach a printed notice stating "Copyright Frist Post 2005".

good

[Anonymous Coward]

cause i like my righs

Righs?

[Anonymous Coward]

What... they can't even make themselves say rights?

My brain is confused..

[OmgTEHMATRICKS]

Did they just typo "rye" or "right"?

Grammar

[knightri]

I think a grammar check is in order....I have never heard of the word 'righs'.

Re:Grammar

[Anonymous Coward]

I think a grammar check is in order....I have never heard of the word 'righs'.

Help me out here. What is a grammar check going to do for a spelling error?

Mod me down.

[Anonymous Coward]

Please mod this post down. Thanks!

Re:Mod me down.

[Anonymous Coward]

No, that's just what he's expecting. Give him +5 funny.

Re:Mod me down.

[Anonymous Coward]

Please mod this post down more than the parent. Thanks!

Hopefully...

[quark101]

This is the first step in P2P being declared legal. Although it may seem like an obvious decision to the people here, remember that not everyone understands the issues so well- i.e. Politicians who make these decisions.

Re:Hopefully...

[blaksaga]

This in no way supports the claim that p2p is legal. It has no bearing on whether one person can legally share copyrighted works with anybody else. All it is saying is that users should have the right to copy digital media for personal use. Distributing those copies is a completely different issue.

Re:Hopefully...

[Alsee]

This in no way supports the claim that p2p is legal

I think he meant a different "this" than you read it as. He said "Hopefully this is the first step in P2P being declared legal." I think the "this" he was referring to was the court case, not the MGM comment about ripping a CD being legal.

Distributing those copies is a completely different issue.

Ironically that is the issue he meant, but of course is an entirely different way. "This" - meaning the court case - would be affirming that P2P is perfectly legal because any individual who chooses to use P2P to commit infringment is a completely different issue. Just as someone using a VCR machine to make and sell 100 copies of a movie is a competely different issue than the legality of VCRs. A different issue that has no effect on the legality of VCRs machines or on P2P and the noninfringing people using them. According to Betamax P2P is a perfectly legal product with perfectly legal uses and noninfringing people have every right to obtain and use that product.

MGM and pals are effectively looking to overturn Betamax. They always thought VCRs should be illegal in the first place. They would be more than happy to have VCRs declared illegal and then go to congress with a "generous deal" law legallizing VCRs in exchange for them getting handed free money with every VCR and tape sold.

-

Re:Hopefully...

[Anonymous Coward]

Alsee, that is more or less what I meant. I realize now that my original post was very unarticulated, and I apologize for any misunderstanding that it may have caused.

The issue is exactly as you said. There are legal uses for both P2P and VCR's (If anything, there are even more legal uses for P2P), and it would seem that this would confirm the legality of P2P, which is why MGM granting some concessions to P2P can be seen as a first step in ending the disputes over it. However, if MGM is trying to overturn the BetaMax decision like you suggested, that could be an entirely different issue...

What about DeCSS?

[SchnauzerGuy]

A movie company saying that it is legal to rip audio CDs isn't really big news.

Now if MGM said that ripping video DVDs is legal, then we would have something to talk about.

Re:What about DeCSS?

[sycotic]

Try researching your statements a bit further next time, buster :)

MGM Music

Re:What about DeCSS?

[kraada]

Actually, I think this is big news, and here's why:

If they say that it's ok for fair use to be able to rip media for personal use, then it follows that they must admit users can do the same for DVDs.

If they are saying it is only allowed in cases where compact discs are involved, then the question becomes: "What makes music special in this way?"

I for one cannot think of why it would be ok to rip cds but not rip dvds. If it is fair use to rip a medium (cd) for use on another device (like an iPod), it should be just as legal to rip a medium (dvd) for use on another device (like xine).

They better think hard and long as to why one is okay and not the other, because the courts will draw the analogy I just made and agree that if some ripping is ok, then all should be (so long as you have the media in question legally, of course).

Re:What about DeCSS?

[Wesley Felter]

"What makes music special in this way?"

It's not encrypted.

Re:What about DeCSS?

[pla]

I for one cannot think of why it would be ok to rip cds but not rip dvds.

Er... Read the subject line of the post to which you responded - "What about DeCSS?"

Although I would tend to agree with you, on any and all lines of reasoning short of "US Law" (which has very little "reason" involved), the DMCA (sort-of) says you can rip CDs but not DVDs. Why? CDs have no access control mechanism, while DVDs do (however weak and pathetic we may consider it), namely, CSS. Thus, you cannot rip a DVD without circumventing that access control mechanism, thereby breaking the law.


Now, does that stop me, or just about anyone, from making backups of their DVDs? Nope. The legality of it doesn't even drift across my thoughts in a vague indistinct uneasy sort of way (which, incidentally, I believe relates well to the entire problem of kids pirating massive amounts of media content online - The law has gotten so absurd in this area that people can't care, they just do it without thinking twice about what Officer Friendly might have to say about it). But it still breaks the law, technically.

Re:What about DeCSS?

[CastrTroy]

Of course it's encrypted. All recorded knowledge is encrypted. You just have to know how to read it. The CD makers publish how to read the bits on the CD and put it together to make music. The DVD makers don't want to divulge how to take the bits and put them together to make it into a video. So we figured it out ourselves. It's like writing a book and then suing someone for figuring out how to read it. Just because they didn't want us to read it, doesn't mean that we shouldn't be allowed to read it.

Re:What about DeCSS?

[NanoGator]

"Now if MGM said that ripping video DVDs is legal, then we would have something to talk about."

What pissses me off is that I want to rip DVDs to build my own personal (i.e. only I use it) media center. They think I'm going to rip gigabytes of data and give it away to anybody who wants it. Right.

Re:What about DeCSS?

[timeOday]

I would say all recorded knowlege must be encoded, but encryptiond is encoding with the intent that not just anybody can read it. It's a question of intent. Granted that's not a very technically meaningful distinction, but through the DMCA it is a distinction enshrined in law (hopefully not permanantly but I'm not holding my breath).

Re:What about DeCSS?

[jambarama]

The implication ought to be there. If anyone can rip cd's and listen to there on anything they own, why not dvd's? Not that I agree, but I could seem the arguement that there is a lack of xvid (or insert mpeg4 codec here) hardware support. So if we can rip our cd's and listen to them on ipods, we should be able to rip our own dvds and watch them on... oh wait a second. Nevermind.

Re:What about DeCSS?

[91degrees]

Good question. But Different types of media are often treated differently. There's a specific US law allowing copying of music (Audio Home Recording Act).

Personally, I think it is perfectly reasonable that different media types are treted differently. I'm a lot more likely to want to produce a mix tape than a mix of DVD scenes. I'll never want to take a few bars from a piece of music, but might quote a section of a novel. Different people have different wants and needs.

Re:What about DeCSS?

[kraada]

However, all encrypted data is meant to be read by it's purchaser. If the intention of encrypting audio cds is so that the purchaser cannot listen to it . . . well, I don't think anybody is going to say that.

However, if you are intended to be able to listen to the data (say in the case of the audio cd) then you have a right to listen to it in another medium, via fair use, if fair use is upheld. The intended user is using it in ways that are consistent with fair use laws.

If the encryption were merely used to tack on another charge to pirates, say, then that wouldn't really be a problem I don't think (ie- charged with circumvention of encryption, breaking copyright law, etc). It would just be another example of trying to stiffen penalties on people who break the law.

But if you're claiming the intent of the encryption is to keep the purchaser from being able to access the data . . . I have to just believe you're wrong.

Re:What about DeCSS?

[Al Dimond]

Well maybe you'll never take a few bars from a piece of music, but what about musicians that use samples? Or in the case of IP in the composition rather than the performance, ringtones for cell-phones (or other short announcements produced by electronics or programs).

Short movie clips probably aren't used as commonly... although I'm sure creative types use them somehow. And it's really all the same in the end. I suppose if it were a court decision rather than a law specifically allowing copying of music that could be used as a precedent in a legal case... I don't think laws can be used quite the same way, though.

Re:What about DeCSS?

[arminw]

...Thus, you cannot rip a DVD without circumventing that access control mechanism, thereby breaking the law...

Actually, the DMCA does not proscribe the USE of tools to copy something, but for anybody to PROVIDE such tools to others in any manner, selling or giving it away. You can make your own hammer to pound nails (or break DVD's), but it is against the law to provide hammers to others. If you can find a hammer in a country that doesn't outlaw the manufacture of hammers, you are allowed to use it, athough it is illegal to smuggle a hammer into the USA. So where did you get your hammer? I made it myself! Oh, that's ok. Having and using a copy breaking hammer is not in the same league as illegal substances; ie. you can't get arrested for the posession of a hammer, only if you let someone else use it.

Re:What about DeCSS?

[Alsee]

Actually you are missapplying the DMCA. It is perfectly legal to rip DVDs. You can rip the entire DVD and leave teh encryption in place.

The issue is that ordinary consumer DVD-Rs have a critical header location destroyed before you get them and ordinary consumer DVD burners cannot write to this location. Without this headder location you lose the keys to play the DVD.

It is perfectly legal to rip a backup of a DVD using a DVD-A burner on a DVD-A recordable disk. DVD-A burners and DVD-A disks tend to be fairly expensive becuase they are not massproduced in any signifigant numbers.

It is perfectly legal to play this backup because you are not circumventing the access control encryption.

It does however leave it illegal to play it on anything except on an absurd notion of an movie industry approved (authorized) player.

The DMCA does not restrict copying. The DMCA has nothing to do with copyright infringment. The DMCA is just a FUBARed law granting copyright holders legal control over the player market. And in the past any attempt to hijack copyright to control player devices and the player market was considered an abuse of copyright and a violation of antitrust law. It was considered highly illegal. But by masquerading as a "copyright protection law" the DMCA handed publishers the power to do something highly illegal.
Oops, I'm drifting from the direct topic and into a broader DMCA rant. Chuckle.

-

Omigod!

[PunkOfLinux]

They actually admitted MP3's are legal!! The apocalypse is night!!!

Re:Omigod!

[Anonymous Coward]

Was your mispelling of nigh intentional? It seams funny enough: right/righ night/nigh.

Re:Omigod!

[Jeff DeMaagd]

Of course. They haven't been suing MP3 coders. Even Apple includes one with iTunes, and it fetches track IDs from Gracenote, which is pretty high profile. I doubt the RIAA would let that go if making files in the format from CDs wasn't legal.

MP3 as an audio format is legal, but distributing MP3s containing audio without the copyright holder's permission isn't.

MGM's comment of the legality of ripping an audio CD doesn't hurt their case one bit because they deal in video anyway.

Re:Omigod!

[ozric99]

Good. Hopefully it'll be too dark to witness our destruction...

So does this mean...

[Anonymous Coward]

...they'll be re-issuing on plain old audio CDs any albums that were originally put out on copy-protected audio disc media?

Or that since they've conceded that ripping audio discs is legal, they won't be going after people who circumvent copy-protection on those discs to rip their music collection?

Re:So does this mean...

[Anonymous Coward]

Well, you see it's legal to rip CDs to mp3. That doesn't mean that they legally have to make it easy for you, or can't put up barriers with the sole purpose of stopping you. And then pay Congress a lot of money to have it made illegal to circumvent those barriers.

So.....

[FS1]

So, basically Hell has frozen over, or is it just experiencing a temporary ice age?

Re:So.....

[Anonymous Coward]

No, someone down there went to the fridge for a soda.

Declared legal?

[Anonymous Coward]

When you start thinking like that, you've already admitted defeat. Things are legal until otherwise shown/declared. P2P is legal and does not need to be declared legal at this point.

Re:Declared legal?

[IANAAC]

Things are legal until otherwise shown/declared. P2P is legal and does not need to be declared legal at this point.

You're right, of course.

But it 's always nice to have a precedent to point to when everybody gets to babbling.

Re:Declared legal?

[Ungrounded Lightning]

Things are legal until otherwise shown/declared. P2P is legal and does not need to be declared legal at this point.

Having the Supreme Court explicitly state that, as a general matter, P2P (even if it is PRIMARILY used for crime) is a constitutionally protected form of speech, is nevertheless a very valuable thing.

For starters, it puts the congress on notice that they can't just arbitrarily ban it, and the lower courts on notice that they're expected to whack suits like this one - quickly and without a lot of consideration and expense for the defendant.

Such a declaration from the courts will drastically raise the bar for the "content industry".

'stripped down fair use rights'

[Richard_at_work]

Uhm, I know that most Slashdotters like to think otherwise, but Fair Use doesnt actually cover most of the things that are commented on on this site. Yes, its may be Fair Use to rip your own CDs, but this is an 'if possible' right, nowhere in copyright law is fair use actually a requirement of distribution - copyright owners dont have to make any considerations for it when implementing copyright protection.

Re:'stripped down fair use rights'

[mark-t]

Actually, ripping your own CD's isn't fair use, it's personal use, which at least in Canada is _specifically_ described in the Copyright Act. Fair use is something else, covering things like satires, research purposes, and the like.

Re:'stripped down fair use rights'

[mindstrm]

No, they don't.

However.

In most countries, and in the US up until recently, (before the DMCA), copyright owners also had no recourse if their anti-copying measures were circumvented. They implemented them to make a statistical difference, not a legal one (and it worked more or less)

Fair use was not spelled out, but was a defence against copyright violation.
Nowadays, in the US, if you break copy protection in order to make fair use of the work, you have STILL broken copyright law.. making fair use moot.

It's not black and white, but the fact is, the DMCA and other proposed legislations put far too much power in the hands of copyright holders; where before there was balance, now there is not.

Re:'stripped down fair use rights'

[kraada]

If it's Fair use to rip your CDs, then it's Fair Use to rip your CDs even if there is DRM in the way. You are converting from one medium to another. This would severely weaken the DMCA, a law about which we have all been complaining profusely.

You're right that the music and video industries can try and implement more and more complicated DRM in order to make it very hard for people to rip said materials. However, they will continue to be broken. And if the conversion is legal, the tool used to do the conversion (via the Betamax decision) is legal as well.

All of which is indeed important and good for the consumer in the long term. (Now I'm just hoping this wasn't an april fool's joke by the zdnet bloggers . . .)

Re:'stripped down fair use rights'

[Overly Critical Guy]

That's true; the topic of ripping your puchased content is an issue of copy protection, as opposed to the issue of distribution.

Interestingly, if MGM is admitting that users are within their rights to rip content and store it, does it not have major implications for copy-protection schemes on physical discs? Could someone use MGM's words against them in the future?

Re:'stripped down fair use rights'

[Anonymous Coward]

Yes, but it's only _specifically_ described in the Copyright Act in terms of musical audio recordings.

Personal copying is part of the "fair dealing" exemptions, which also cover educational reproduction (libraries and schools).

Re:'stripped down fair use rights'

[Anonymous Coward]

Fair Use doesnt actually cover most of the things that are commented on on this site.

Follow the logic:

I can rip my own CD for backup.

A ripped CD (being digital) is identical, no matter who does it.

What if I don't have the knowledge to rip a CD, so I download someone else's rip?? I end up with the same data either way.

Therefore, it may be legal to download a rip (if you own the CD).

Therefore, the **aa's need to PROVE I don't already have a song/movie before they can sue me. Otherwise, if I DO have an original, I have the right to have the backup.

You can't prove a negative.

Therefore, no one ever gets sued.

Re:'stripped down fair use rights'

[plague3106]

Actually you may need to prove that you DO own the CD. I know this flys in the face of innocent until proven guilty...but thats what's likely to happen.

Re:'stripped down fair use rights'

[NetNifty]

I don't think the *AA have sued anyone for just downloading yet, just uploading - which essentially is distributing copies of it, but yeah I'd say downloading copies of the stuff you already own for convenience is a good point. The issue gets even more cloudy though if you use a protocal that you effectively don't have a choice about uploading on (like BitTorrent, where you either upload or get less than snail speed).

Re:'stripped down fair use rights'

[cpt kangarooski]

Setting aside that your logic is really flawed in light of what the law authoritatively says must be proved to make out a prima facie case, you might find this essay enlightening.

Re:'stripped down fair use rights'

[Anonymous Coward]

Interesting, but let me quote a few sentances:

There would be no way to test one of the files and see which one it was, because they are actually the same file. Having identical bits means by definition that there can be no difference. Bits don't have Colour; .... ...human beings are not in general Colour-blind. The law is not Colour-blind.

First he states the obvious reality: that bits do not have Colour.

Then he says that the Law sees Colour in those non-Coloured bits.

Hmm. If Reality and the Law disagree, I'd say it's the Law (rather than Reality) that has the problem.

Someone who cares a lot about what Colour the bits are, and spends a lot of resources on trying to answer that question, is a dangerous idiot if not a Commie Mutant Traitor.

Exactly. :-)

the idea of Colour not existing in the first place is not within [the lawyers] imagination. The "fact" that Colour is something real is so fundamental to law that it can't be challenged.

When people beleive in things that don't exist, don't that call it a delusion, and lock the person up? Or at least medicate them?

Basically put, the Law does not reflect reality in this case. The Law needs to adjust, because Reality will not.

If I am entitled to a certain file of bits (a rip of MY CD), then it does not matter where that file came from. I have the bits I'm entitled to. I'm entitled to the bits I have.

Re:'stripped down fair use rights'

[cpt kangarooski]

Hmm. If Reality and the Law disagree, I'd say it's the Law (rather than Reality) that has the problem.

No, not really.

Copyright law isn't concerned with any particular instance of a work, it's concerned with the actions people take in connection to a work.

So for example, reproduction of copyrighted works is illegal. If you write a poem, it is illegal for me to reproduce your poem in a new copy. OTOH, it is not illegal for me to independently write a poem which happens to be identical to your poem. Since I haven't reproduced your poem -- i.e. consulted yours in crafting mine -- I'm in the clear. (Of course, as works become more complex, the likelihood of independent creation goes down sharply, so it can be hard to convince people that you've acted lawfully)

If I am entitled to a certain file of bits (a rip of MY CD), then it does not matter where that file came from. I have the bits I'm entitled to. I'm entitled to the bits I have.

But copyright law isn't structured in what you're able to have, it's what you're able to do.

It might be okay for you to reproduce the work yourself from one source, or by one method, but not another. That the end result is the same is not relevant, because it's not the end result that's the focus of the law. It's the process.

Kind of like how on a math test, if you supply a correct answer, this is not as good as showing your work and getting the correct answer. No one cares, with regards to math tests, what the answer is. You're trying to demonstrate that you have the skill to find it, and a naked answer isn't a good demonstration. Certainly it's not useful later, when people will want to know your methodology so that your work can be verified.

The essayists child porn example is an apt one. Child porn is not a subset of obscenity, and thus, if we looked at it purely from the standpoint of obscenity, some of it would be okay to make and distribute. Plus, possession of obscene materials is not illegal.

No one cares all that much about child porn with regards to obscenity, however. The main objection is that making it is harmful to the children involved, and that in order to discourage child abuse, people making, distributing, and possessing child porn should be prosecuted.

This means that since we're concerned about the children, if they're removed from the equation, the reasons for treating child porn specially go away. You can't harm children that aren't there.

So if you have two identical photos, and one was made with real children, and the other was not (it's just a good rendering or something) then only the former is child porn. Because again, what the law is focusing on is the process, not the end product.

Re:'stripped down fair use rights'

[Pofy]

>Follow the logic:
>
>I can rip my own CD for backup.

Yes, appearantly. This is allowed if the copyright law says you can make copies for personal use for example. In US I would say this goes under the "Fair Use".

>A ripped CD (being digital) is identical, no
>matter who does it.

Well, it can end up quite different depending on what program is used, the compression rate and so on, but lets assume it indeed IS identical copies we talk about.

>What if I don't have the knowledge to rip a CD,
>so I download someone else's rip?? I end up with
>the same data either way.

The thing is not really what you end up with, but what you do. Copyright is about doing things, like creating a copy, distributing copies or making copies available to the public.

Typically, in almost any country, the one uploading, that is, making copies available for others, is commiting copyright infringement since he is making copies available to the public, something that is an exclusive right to the copyright holder.

The one downloading can is the one making a copy, is that legal or not? Seems to depends on countries and how they have defined their variants of fair use or limits on the exclusive rights for copying. In some countries, it is OK to download if the copy created is for personal use only. Then it ok (regardless of if the copy is identical or not or, indeed, even if you own or not an original. In other countries, it is not allowed to make such copies for personal use UNLESS the original from which that copy is made is "lawfully made available". Since in a typical download case over the internet, the original you download is made available in an unlawfull way, such a copying is not OK. I would assume the US "fair use" would consider this to be more or less the situation and hence illegal. The fact that you happens to own an original yourself or not is completely irellevant from a copyright point of view. It is the act of copying (or making available to the public) that can be copyright infringement or not.

>Therefore, it may be legal to download a rip (if
>you own the CD).

It may, or may not, as shown above. It has nothing to do with if it is OK to rip yourself. In general, I would say that if it is not legal to rip, it is probably not ok to download either. But if it is ok to rip, you really can't say much about it being legal or not to download.

>Therefore, the **aa's need to PROVE I don't
>already have a song/movie before they can sue
>me. Otherwise, if I DO have an original, I have
>the right to have the backup.

They would sue you for making copies (or making it available), not for possession. If you happen to own the original or not is completely irellevant.

Re:'stripped down fair use rights'

[Sentry21]

To add to this, personal use in Canada also covers e.g. my ripping of someone else's CDs. For example, I can borrow the parent poster's original CDs, rip them all to MP3, and then give them back, and as long as it's for personal use (i.e. I can't give or lend my copy to someone else) then it's well within the boundaries of personal use, and is thus legal (per the Copyright Act).

Re:'stripped down fair use rights'

[mark-t]

Uh... not exactly.

When you surrender possession of the original work, you are obligated to either destroy or also surrender all personal use copies that you may have made while in possession of the work. Not doing this puts a person on shaky legal ground at best. While technically not Copyright infringement in and of itself, keeping copies of a work after you have returned it is generally considered as willful disrespect for Copyright and will carry similar penalties to actual Copyright infringement if discovered.

Re:'stripped down fair use rights'

[iamnotanumber6]

If it's Fair use to rip your CDs, then it's Fair Use to rip your CDs even if there is DRM in the way.

Yes, that's correct. But the DMCA doesn't alter "fair use". What it does is outlaw the act of cracking a DRM scheme. Even if what you are cracking it for is a fair and legal use.

Isn't that clever!

It's like in Canada, where prostitution is legal, but "communicating for the purposes of prostitution" is illegal. Uh, so how are you supposed to....??

Re:'stripped down fair use rights'

[iamnotanumber6]

Uh... not exactly.

Canadians are allowed to copy all the music they want, regardless of whether they own the original or not.

The government charges a tax on all blank media, which is distributed to musicians, to make up for their "losses". They can't charge the tax and at the same time say the activity is illegal.

Re:'stripped down fair use rights'

[mark-t]

No, or else it would be legal to, for example, rent something from a place , copy it for personal use, and return it. It isn't.

Re:'stripped down fair use rights'

[iamnotanumber6]

No, or else it would be legal to, for example, rent something from a place , copy it for personal use, and return it. It isn't.

No. I mean yes. It is.

Canadians can borrow a CD from a friend or library, copy it for personal use, and return it. Legally.

Want to download MP3s from the net? It's not called "pirating" in Canada (or France either) - it's perfectly legal, so enjoy! Share your files with others on Kazaa? Not a problem! How is this possible? Through the magic of taxes!

Businesses can't rent out CDs, but that's another story. P.S. you might want to read the copyright act before posting further. Or maybe just start sharing music (which is actually good for the music industry) before the RIAA/CRIA thugs slam a Canadian version of the DMCA copy protection-racket through the house of commons.

Re:'stripped down fair use rights'

[mark-t]

If you can legally borrow something from a library, copy it for yourself, and then return it legally, why can't you legally copy things you *RENT* (movies, for instance). Why won't stores that sell software normally accept the software for refund (ie, exchange for same product only) if the package has been opened? The entity doing providing the material is entirely uninvolved in the copying, and you may be actually copying for just personal use, YET, in spite of these two inalterable facts, the law is still being broken. Why? If you can show me anywhere in the Canada Copyright Act or anywhere else in the Canadian Criminal Code where this specific thing is covered, I'd sure like to know about it. Because from where I'm standing it seems that the *ONLY* interpretation is that access to personal use copies must be lost when access to the work being copied is lost.

And by the way, sharing copies of music does not fall under personal and private use, so you have no right at all to make copies that are going to be shared unless the copyright holder gives you such permission.

Re:'stripped down fair use rights'

[Farmer Tim]

"...I'd say downloading copies of the stuff you already own for convenience is a good point."

I can see where you're coming from, but in a lot of ways this is asking everyone else to take responsibility for your stuff. More pointedly, its's relying on others to break the law, and that's not really something I personally would be prepared to ask of anyone; certainly not for the sake of "convenience".

"The issue gets even more cloudy though if you use a protocal that you effectively don't have a choice about uploading on."

Not legally, it doesn't: just because a particular piece of software mandates a form of behaviour, that behaviour doesn't suddenly become legal. Worse, if a piece of software encourages illegal behaviour, that software and it's writers could potentially be seen as contributing. This is a critical difference between BitTorrent and Napster which must be considered to draw any meaningful comparison: Napster didn't reward people for adding files to the network, which may be how they successfully argued it wasn't contributing to infringement. Morally speaking, though...well, that's a minefield of opinion (mine being that P2P is fundamentally a good thing, but if used unwisely it won't stay good or free for long, and each new protocol will fall as soon as the lawers work out where to send the nasty letters while the laws get ever more draconian; in other words, the last 6 years will just keep repeating, so using software that looks suspicious is a bad idea if file sharing is to retain any kind of legitimate air).

Re:'stripped down fair use rights'

[Farmer Tim]

Excellent post, but I'd raise on two points.

"Of course, as works become more complex, the likelihood of independent creation goes down sharply"

This isn't necessarily true, particularly in music where very short and simple note sequences are often the subject of copyright disputes, yet modern orchestral scores are rarely contentious (of course this might be a reflection on the more derivative nature of pop music, or the fact that there isn't that much money in orchestral composition). In this regard greater complexity can actually reduce the chance of being derivative, as long as knowlegde is being applied to that end.

"So if you have two identical photos, and one was made with real children, and the other was not then only the former is child porn."

Depending on jurisdiction. In some places (Australia, world leaders in internet censorship, for example) digitally manipulated images and even cartoon drawings can be classified as child porn. However, since the intent of such laws is to prevent the process of developing pedophillic habits, your point still stands in principle.

copy protected CDs

[sfcat]

What does this mean for copy protected CDs? IANAL, but doesn't this mean that putting out copy protected CD, in addition to violating the terms of their agreement with the holder of the CD patents (a copy protected CD is one that breaks the CD standard so badly that computer CD drives refuse to read it), they are violating the consumer's rights? Does this open the doors to a huge class action suit? Inquiring minds want to know.

Re:copy protected CDs

[Anonymous Coward]

Fair use is actually a defense against infringement, not a right. So if you successfully rip a CD and the copyright holder sues you, then you can claim fair use. But if you can't rip a CD (because it is protected), then you haven't been sued, so you can't claim fair use.

Re:copy protected CDs

[FidelCatsro]

a copy protected audio CD is a damaged improper CD and if you were to ask phillips they would not let you call it a CD.So them selling a copyprotected CD is false advertising (phillips holds the IP on CD ) so yes it is a violation of consumer rights

Re:copy protected CDs

[AFCArchvile]

I haven't heard of a law regarding the freedom of media playback (has this issue ever come up before standardized digital media were invented?), but as it is now, the CDDA patent holders will forbid the label from placing the "Compact Disc Digital Audio" logo on the CD or case. This has happened before with Cactus Data Shield, Macrovision, etc., and it didn't stop consumers from buying the CDs without checking for the seal. After consumers discovered that their multi-speed drives couldn't play the "CDs" they were buying, they started complaining to the labels and started spreading the word, and the cat was out of the bag as far as the redbook-violating protection schemes were concerned.

I once read that dance music label Kontor was going to use copy protection on CD single releases, as well as albums. Many DJs use expensive CD players such as the Pioneer CDJ-1000 and Denon 5000 that are all multi-speed, have large buffers, and do real-time pitch adjustment, which REQUIRES multi-speed drives. These players only work with redbook CDs; the faux-error copy protection schemes that won't run in many car CD players will also make these >$600 CD players choke. Hopefully music labels have thought more of this when mastering CDs now.

Re:copy protected CDs

[Anonymous Coward]

In addition to what parent said, one could potentially sue a CD manufacturer that makes copy protected CDs with one'o'em little "CD-Audio" labels on them. In that case, they'd have been advertising under false pretences, as copy-protected CDs do not fall within the Red Book standard (this is why they do not work on certain CD players, car CD players in particular*). However, since consumers don't look for these labels and don't understand that, these days, thanks to copy protection mechanisms, the abscence of one really DOES mean that your disc could quite well refuse to play in the car stereo*, manufacturers are quite safe to leave these labels off without repercussions, leaving them free to sell "copy-protected" (read: broken) crap with consumers almost never noticing.

Re:copy protected CDs

[mattyrobinson69]

Didn't sony create CD's? If so, i dont think they'l sue anybody for that,

Re:copy protected CDs

[Anonymous Coward]

No you can't use it as a defense. If you successfully rip a copy protected CD then you can be sued under the DMCA and fair use is not a defense. Read judge Kaplan's ruling if you don't believe me.

Re:copy protected CDs

[pla]

What does this mean for copy protected CDs?

Legally, absolutely nothing. MGM can tell us we have a moon made of green cheese, God wants us to kill gay baby whales, and that we can copy CDs, and none of it means anything at all in court.

Also, we need to skip over the fact that Phillips has denounced these broken CDs as not actually CDs. So let's reduce the question to referring to more-or-less CD-like audio discs.


So... Ignoring all of the above... The answer still depends. CD copy protection refers to quite a few different technologies, ranging from the "copyright" bit, to broken TOCs, to unrecoverable C2 errors, to trying to install what amounts to a virus on your computer, to (haven't seen these come out yet, but I fully expect it eventually) data-only discs that will never ever play on a normal audio CD player.

In the first case (copyright bit), this does nothing more than the "Copyright 2005" already on the outside of the CD packaging. Fair use wins.

In the second and third cases, if your player can still read the disc, you probably don't even know the disc has any form of structural damage, so you don't need to circumvent any protections. Fair use wins.

In the fifth case, this would pretty much match the current internally-inconsistant legal situation with DVDs... You have the "right" to copy it, but you would have to break the law (DMCA) to do so, by breaking whatever access control mechanisms (however weak) the disc has.

The fourth case gets really interesting, though... These discs usually have two sections, an audio section and a data section containing something like WMA files. Once you get infected with the "driver" for these discs, you cannot access the audio tracks, only the digital ones. So post-infection, the situation reduces to #5 (thus my elaboration on that one out-of-order). Before infection, we get into a whole world of nasty tangled legal problems that I do not have the qualifications (IANAL, obviously) to comment on beyond mere speculation. For example, do you have the "right" to not install unwanted software on your computer? If so, press the shift key and have a ball. And what if you run Linux? Does the non-availability of a virus/driver for the protected content exempt you from having to worry about its existance (in that case, you would simply access the otherwise-unprotected audio tracks, you couldn't access the data track)? What if you have autoplay disabled by default, for security reasons (as EVERYONE should!)? Could that still count as circumvention, even though it doesn't require you to "do" anything? Tricky.


Overall, it will take either a new law like the DMCA, or a massive shift in public opinion on this matter, before you'll see any media companies try to take someone to court simply for ripping their own CDs or even DVDs. They would have an exceedingly difficult time proving you broke the law, they would risk the courts declaring sections of laws such as the DMCA invalid, and the cost of losing would set a precedent that, in their current mindset, would completely destroy their current business model. Not to mention, if they win, they would risk enormous public backlash, along with the possibility of huge lawsuits in some cases (Sony, for example, producing CDs, CD copy protection, and MP3 players, can only get away with that level of corporate psychosis because the law remains somewhat unclear on the entire issue).

Re:copy protected CDs

[arodland]

No, in fact it's Phillips. This has been noted already, but that post was mysteriously modded into oblivion.

Re:copy protected CDs

[iamnotanumber6]

you are free to try to copy a CD under "fair use". if you are incapable of doing so for whatever reason, that's your problem. if your photocopier breaks, the bookstore doesn't have to send someone over to fix it.

This story ...

[Gallamine]

... is righ on! The MGM folks are completely righ in saying this. Oh, and I'm quite fond of righ bread, er, rye bread.

Re:This story ...

[pommiekiwifruit]

"You can meet many former 'homosexuals'; you will never meet a former 'African-American'." - Legislating Morality

Um, Michael Jackson?

But they weren't going after rippers to begin with

[SlashChick]

AFAIK, all of the lawsuits thus far were from people sharing large volumes of MP3s on P2P networks. Have the record companies have ever even threatened to prosecute people who rip music from CDs and put it on their portable MP3 players? I highly doubt that this really the big concession that the ZDNet blog says it is.

I' rather the gouverments..

[FidelCatsro]

I would far rather our consecutive gouvernments say it .I do not care a bit about what some company has to say about the law and my rights .I want to hear the Gouvernments stick up for our rights for once.Though it would be nice to see them with their heads between their legs.

Re:Mod up!

[Anonymous Coward]

Sorry, I'm a bastard.

short term problem

[geoff lane]

Writers and artists survived for a long time before copyright laws existed and will continue to survive for a long time after copyright laws are abandoned as unenforceable because of modern technology.

Re:editors ...

[SouperIan]

http://humorix.org/articles/2005/04/slashdot-edito rs/ Nah. I don't think they're supposed to edit.

Of course

[bonch]

As technically-inclined people, we need to make sure society as a whole understands that there is a difference between technology and the use of technology. P2P is just a technology. Banning P2P because there are people who use it illegally is ludicrous. We have to make sure the fair and legal uses for P2P are known.

Naturally, this opens up other discussions about technologies and their uses. Some might argue that based on the above argument, everyone should have the right to own a gun, since it's not the technology that's bad but the use of it by certain people. But these are debates that need to be had to mature the discussion about the difference between a simple object or technology and the way human beings use it for their own gains or against others.

Basically, confronting the issue with education and discussion, instead of reacting with lawsuits, is the way to find a position the majority of society can agree on.

Re:Of course

[LordSnooty]

>Some might argue that based on the above argument, everyone should have the right to own a gun

I hope those that take this view also accept that if someone downloads the latest Scissor Sisters album, no-one dies. The same can't be said of the gun.

Re:Of course

[Axess Denyd]

Ummm.... Everyone DOES have the right to own a gun.

In the United States, anyway.

Of course, that's got it's very own thing called the 2nd Amendment to go along with it.

Re:Of course

[Anonymous Coward]

It occurs to me that with readily available equipment I could build, say, a crossbow. I don't think it would be legal for me to wander round in public with one of those. Does that mean the equipment (wood, tools, etc.) should be illegal?

Re:But they weren't going after rippers to begin w

[konichiwa]

No but as mentioned above MGM has been yelling loudly against DeCSS which is in effect the same thing (in terms of DVDs) that they just said was perfectly lawful (in terms of CDs)

So....

Completely meaningless statement

[angle_slam]

No matter what the attorney said in court, it's not binding on any party at all. What he said is law only if the Court agrees with him and rules as such. Because ripping one's own CD is not actually before the Court, they probably won't rule on it.

There is no such thing as "judicial estoppel". If he meant collateral estoppel or res judicata, those only apply to rulings by the court, not statements made in court.

Re:Completely meaningless statement

[mark-t]

It already is. Personal and private use is _explicitly_ given as a limitation to the scope of a copyrighted work during the period it is protected by copyright. If you abuse that privilege, however, and start giving away copies that may have been afforded to you by this limitation, expect a herd of angry lawyers to come sniffing after you.

Re:Completely meaningless statement

[jasomill]

There is no such thing as "judicial estoppel". If he meant collateral estoppel or res judicata, those only apply to rulings by the court, not statements made in court.

judicial estoppel. Estoppel that prevents a party from contradicting previous declarations made during the same or a later proceeding if the change in position would adversely affect the proceeding or constitute a fraud on the court. --- Also termed doctrine of preclusion of inconsistent positions; doctrine of the conclusiveness of the judgment.

--- Black's Law Dictionary, Seventh Edition

Re:Completely meaningless statement

[WebHostingGuy]

You can see the key word in that defination as "declaration". This word has special meaning is is not what happened here. The attorney was arguing a case and not making a legal declaration. Further, it was in response to a question, and could be constued as a hypothetical.

In real life attorneys state a lot of different things in arguments and easily go back and forth on positions. This case does not have the issue of fair use in front of it so a passing statement like this will get news headlines but will not be binding.

Furthermore, even if this does come back up it can be easily defended by stating that one interpretation under the law is that it is fair use. However, at any time a client can assert a position contrary if they feel the situation has changed or they believe an extension or repeal in the law is now proper. That is, "I changed my mind and a better reading of the law now is that it is now fair use." That's okay to do.

If you had the situation where MGM was relying on fair use to win a case where they copied something as used it and stated that ripping a CD was okay under their circumstances then later they try to win another case where they are now asserting that it is illegal--that's was the defination is talking about.

Re:Completely meaningless statement

[mjtaylor24601]

I think that you might be trying to argue against a point that the GP post wasn't actually making. The GGP post said (and the GP post highlighted) that

"There is no such thing as 'judicial estoppel'"

jasomill correctly pointed out that judicial estoppel is in fact a real legal term (at least according to the authors of Black's Law Dictionary, Seventh Edition). Whether or not judicial estoppel actually applies to this case is outside the scope of his post.

Great

[Sv-Manowar]

It seems the companies are finally realising that there is a difference between the p2p software, and the people who distrubute illegal material via it

It's like trying to close a road because some people are speeding. Good move by MGM here

DeCSS violates IP if used as a DVD player

[geekee]

"What about using DeCSS to watch DVDs on Linux or other platforms? It should be interesting to see MGM try to wriggle out of this, since I doubt that the company is going to champion any expansion of fair use."

Although it should be legal to rip a DVD to make a backup, there are IP issues with using DeCSS. DVD player manufacturers must pay a licensing fee to use the DVD format. By using DeCSS to play your own movies on your computer, you are not violating fair use, but you are using the technology without paying the licensing fee. Therefore, it seems DeCSS should be legal as a copying tool, but not as a playback tool, although IANAL.

Re: DeCSS violates IP if used as a DVD player

[astonishedelf]

i am a lawyer although not a IP specialist. It seems to me that any problems involving the use of the DeCSS would not be the concern of the original maker of the DVD. It would between you and the person owning the IP. It seems to me unlikely that they would sue.

Re: DeCSS violates IP if used as a DVD player

[omb]

Your comment is a definative example as to why the broken US Court System continues to do dis-service to the Law Abiding and to the clarity, the law itself, needs to have.

Having failed, conspicuously, to prevent citizens from their lawfull excercise of their rights e.g. making a backup of a CD/DVD the IP/media industry attempts to attack the process, e.g. DeDCSS, not the end result, using anti-circumvention.

Any sensible Court system would already have establised rules that that state that the end result must be shown to be unlawful before the court will entertain arguement as to method.

There is a very pressing need for reform in this area, so that the process of the law becomes more transparent.

Re: DeCSS violates IP if used as a DVD player

[Anonymous Coward]

People breathing must pay a licensing fee to me. By breating, you are not violating fair use, but you are using air without paying the license fee.

Just because I say so. Just because the DVDCCA (or what the f* they're called) says so.

Companies do not have a right to money just because they say so. Doing something that you might otherwise have to pay other people to do is not generally illigal, even though you got it done without paying those people.

I can wash my car without paying the local car wash. Jon Johannsen can write a DVD decryption program without paying someone who write a different DVD decryption program.

Re:But they weren't going after rippers to begin w

[Luthair]

Except there have been lawsuits against the software packages that allow you to copy them.

MGM is music too

[Anonymous Coward]

According to MGM (http://www.mgm.com/corp_inv_music.do), they have been involved in music since 2000, with such IP as:

soundtrack to What's The Worst That Could Happen?
soundtrack to Josie & The Pussycats
soundtrack to Rollerball

Need I go on? Ok, I will:

Other releases include the soundtracks to the upcoming films A Guy Thing, Bulletproof Monk, The Tree, Pumpkin, Assassination Tango, and City of Ghosts.

Re:MGM is music too

[Anonymous Coward]

Maybe if they specifically allow those to be p2p'd that will bring the grand total of distribution up to a staggering 8 copies...

Re:But they weren't going after rippers to begin w

[SlashChick]

Yes, they went after DeCSS because it broke the encryption on DVDs. Audio CDs (normally) do not have any encryption, so it is legal to rip them. Obviously, the record companies are trying to prevent this by putting encryption on audio CDs, but so far those efforts have been unsuccessful. This isn't really similar to the DeCSS case -- there's no law that makes ripping unprotected/unencrypted audio CDs illegal.

Re:editors ...

[whoever57]

Come on, you could atleast make sure the title is spelled correctly

Come on, you could, at least, make sure that your own criticism is spelled correctly.

DVD Packaging Warnings

[lxt]

This seems like a good time to ask a question that's been bugging me since I bought a new release DVD a few days ago - as well as some copy propaganda video that came up, I also got a FACT (the UK copy protection "federation") warning which in very bold letters told me "It is illegal to copy this DVD".

It didn't say anything about distribution - merely "It is illegal to copy this DVD". But I thought under UK (and US) law I was allowed to copy physical media for my own personal use, or if not that for my use as a backup copy.

If I'm right, does that mean someone could actually have some sort of legal case against FACT, seeing as they are wrongly informing consumers of their legal rights?

I'm obviously not a lawyer, and I only ask this out of curiousity...

Re:DVD Packaging Warnings

[NanoGator]

"If I'm right, does that mean someone could actually have some sort of legal case against FACT, seeing as they are wrongly informing consumers of their legal rights?"

I'm not claiming to be super informed on this topic, but I'm fairly certain the DMCA says "Nah, you can't copy this because you'd be undoing encryption."

I don't know if the UK has that law also or not. Clarification appreciated.

Re:DVD Packaging Warnings

[WhatAmIDoingHere]

That's why programs such as CloneCD are great, because they do a bit-for-bit copy of the CD/DVD including copy protection. I think Alcohol 120% is the same way.

Re:DVD Packaging Warnings

[Xugumad]

Actually, if I remember correctly (and really can't be bothered trawling through UK copyright law right now, so sorry for lack of a link), the UK's copyright laws don't have an provision for copying for personal use. Doing a very quick search, this seems to have a good summary:

http://www.patent.gov.uk/copy/indetail/usingcopyri ght.htm

See "But if I've bought something, can't I use it however I like?" specifically.

Sucks, doesn't it.

Re:DVD Packaging Warnings

[Stonehand]

Why would copying require decryption? If you send me an encrypted digital file, I can copy the encrypted digital file verbatim even if I can't decrypt it to reveal the plaintext. Unless every system that could duplicate it has hardware protection to prevent reading it as bytes rather than sending it to some approved playing software?

Re:DVD Packaging Warnings

[LordHunter317]

You can't copy an encrypted DVD because DVD-R media (of all forms) has the block where the encryption keys go zeroed out.

Re:DVD Packaging Warnings

[arkhan_jg]

Actually, that's not an explicit defence against infringement under UK copyright law. Our version of Fair Use is called Fair Dealing, and has very limited exceptions -
basically, you can only use a limited portion of a copyrighted work for education or news reporting etc. A wholesale copy, even if it's for your own use, is technically illegal. Ergo, ripping a CD to MP3's, or a DVD to your hard drive are not legal - but not enforced.

However, the courts have generally ruled that a non-distributive, non-profit copying is legal, such as timeshifting by taping radio shows, or making transient copies in order to run a program.

It's likely that ripping a CD or DVD, for your own personal use (and not say, your mate) would equally be judged non-infringing if it ever came up in court.

That is until the EUCD comes into force. The UK has already signed up to this european legislation, we're just waiting on the patent office to write a version of the law for parliament to pass. The EUCD is more restrictive than the DMCA, and the UK version will almost certainly prevent the bypassing of copy-control mechanisms by any means. Therefore when it passes, bypassing CSS to rip your own copy will likely be explicitly illegal, rather than technically as at the moment.

Re:DVD Packaging Warnings

[mindstrm]

Decrypting isn't illegal per the DMCA.

Circumventing copyright protection is still allowed, however

producing a device (Or software) who's primary purpose is to circumvent a copy protection mechanism is another matter.

In other words: you are allowed to reverse engineer the copy protection scheme yourself and make personal copies. You are not allowed to write software to do it and distribute it.

Re:DVD Packaging Warnings

[kraada]

I'm not a lawyer either, and I certainly don't know UK law, however, I do know that under US contract law, if there is a section of the contract that is illegal, even if both parties agree to it, it is not binding.

So if you sign a lease which says that "The landlord has the right to evict you without notice at any time." that clause is actually not legal, and not enforceable, and does not void the contract. At least in the US. So they can say "By buying this disk you cannot copy this disk" as much as they want, if the law gives you that right, you can exercise it.

Furthermore, I see no reason from your description to believe that they aren't simply just lying. As I said, I don't know UK law, but there's no reason for me to believe that just because I see a flashing banner that says "X is illegal" that X is illegal. They're trying to discourage piracy; making people believe all copying is legal certainly will do that much . . . whether or not it's true.

Re:DVD Packaging Warnings

[Anonymous Coward]

FYI: The EUCD provisions already came into force via statutory instrument on the 31st October 2004; they are UK law NOW.

Re:DVD Packaging Warnings

[omb]

Sadly, you will find that what the said was weasled, exactly to prevent you prevailing so ... "Copying this DVD ___may___be___ unlawful ..." in which case they will rely on ___may___. IAAL

Re:DVD Packaging Warnings

[NetNifty]

Well, technically you can copy it, but it doesn't mean the copy will work.

Re:DVD Packaging Warnings

[rmccann]

An article in a recent Linux Format was about reverse engineering. One of the provisions of UK law is that reverse engineering for interoperationally needs is never illegal regardless of any contract. Thus the bnetd case wouldn't have gotten to court in the UK.

Re:DVD Packaging Warnings

[UncleFluffy]

You can't copy an encrypted DVD because DVD-R media (of all forms) has the block where the encryption keys go zeroed out.

Let me just finish swapping out the laser on this burner for something with a little more oomph and we'll see how long they stay zeroed out ...

Re:DVD Packaging Warnings

[swillden]

They can't do a bit-for-bit copy of an encrypted DVD to a blank DVD+-R/RW, because there is a block of keys in a certain location on the encrypted disk, and that portion of the blanks is not writable. If you can copy a movie to a blank DVD using a tool, and the copy plays in an ordinary DVD player, then that tool must be decrypting the data, aka circumventing a copy protection mechanism.

Of course, audio CDs are not encrypted.

Re:DVD Packaging Warnings

[WhatAmIDoingHere]

Maybe not to a blank DVD +-R/RW, but you can rip it to your hard drive.

Re:DVD Packaging Warnings

[Anonymous Coward]

How much "oomph" do you need to make your laser unburn the holes, turning them back to reflective?

Re:DVD Packaging Warnings

[Pofy]

Decryption in itself can not be illegal or you would not be able to view/listen to it to start with. The whole issue of encryption/decryption in regard to DVD is really bizarre since encryption is used to PREVENT someone to access it, however, here the one having the DVD is supposed to access it, that is the whole point, listening or viewing it.

Re:DVD Packaging Warnings

[swillden]

You don't need any thing fancy to do that. On any *nix system, "dd" will do it. I believe Cygwin's "dd" will do it under Windows, also.

Re:DVD Packaging Warnings

[WhatAmIDoingHere]

Will it also rip the copy protection?

Re:DVD Packaging Warnings

[swillden]

It grabs the whole image, bit for bit, which means the encrypted stream and the keys to decrypt it. The result can be played by many DVD players (open source ones, at least, I haven't tried any commercial players).

Re:DVD Packaging Warnings

[arkhan_jg]

As I understand it, the statutory instrument only means that it has passed the EU council/parliament stages, and now needs to be implemented at the national level. I don't think it actually becomes enforceable law in the UK until a version is passed by the local (UK) government. I stand to be corrected though.

Property Rights

[hhawk]

Lots of issues here; let's walk through them all

1) File sharing and "ripping and sharing" in general expand the market and drive up sales and possible, disintermediation of the record labels.

2) MPIA has been wrong about this issue; they would have killed the VCR rental market, for example; instead a multi-billion dollar business was created.

3) For a song, there is the copyright on the words (Lyrics; song writer) and the (Music; composer) and is their copyright for the performance as well (e.g., the artists). I believe the record companies also assert a copyright on the finished album (CD) as well; which maybe legal and all, but well isn't really for something all that creative and artistic that it would worth copyrighting (and the some day releasing it into the public domain.

4) You certainly have the right to make archive copies and/or to use that copy and keep the "master/original" safely stored for safe keeping.

5) If you also have the right to lend your CD to a friend or have a library and lend out CDs/DVDs.

6) Do you really however, have the right make copies of your archive and lend/give those?

6a) While it's good for business to do so (my belief), I think it is illegal.

6b) I've driven through south central LA and seen crack being sold in 20 sec. transactions and at the time said, when you can sell 1 Terabyte of music that way, legal or NOT, copyright becomes some you can not enforce. That doesn't make it legal, but makes it so you would want to change the law...

7) Economist and Hover Inst. Fellow, Thomas Sowell called P2P sharing akin to fencing stolen goods, but for that to fly you'd have to "selling" the copies... It's not fencing, if anything its accessory to theft, but it's possible (AND THIS IS BIG THING) that accepting that it is THEFT, that there is NO Damage and NO Loss; again it actually has inverse damages; it enriches the copyright holders (see points 2 and 6a.

Re:Property Rights

[hhawk]

What I didn't say, is I'd like to see some type of legal challenge to the record companies copyright claiming that the finished song, music and performance is no different from the Album so that they can't claim the rights that have already been award to the creative arists.

Now they will claim every thing from the layout of the tracks and the final production, etc. but those are in my view all work for hire and those rights should be wrapped up in the various artist rights.

Basically, since they are coming at US so hard, so fierce, we need to go after them where it really counts and hopefully (or wishfully) where they are most vunerable...

Re:Property Rights

[stubear]

"2) MPIA has been wrong about this issue; they would have killed the VCR rental market, for example; instead a multi-billion dollar business was created."

I really hate reading this crap, sorry. Video rentals include the purchase of thousands, if not tens of thousands, of copies of each video on DVD, and in some cases VHS, for every video store chain to rent. P2P as a distribution system does little to promte sales on this scale. P2P is a system based on leeching, not sharing, like many seem to unwittingly believe. A select few people are responsible for the initial seed of illegal movie distribution on P2P systems but the file seeds multiply exponentially after this. In the case of movies that are still in the theatre no sales of the movie have been made. In the case of CDs, some have ben released on P2P systems prior to being released to the public, again resulting in no sales to begin with.

"3) For a song, there is the copyright on the words (Lyrics; song writer) and the (Music; composer) and is their copyright for the performance as well (e.g., the artists). I believe the record companies also assert a copyright on the finished album (CD) as well; which maybe legal and all, but well isn't really for something all that creative and artistic that it would worth copyrighting (and the some day releasing it into the public domain."

Record labels maintain copyright over the mechanicals. These are the sound recordings themselves and nothing more.

Re:Property Rights

[Jeff DeMaagd]

Proponents of P2P seem to like to imply that theft has to have a visible loss component. The way I see it, theft is a person taking something which that person not lawfully allowed to have, which unlicenced copies of movies, software and music easily fall under. The person or group being stolen from does not have to see a material loss.

Then again, making petty semantic arguments doesn't matter unless somehow geeks and file "sharers" get a higher reputation within society. Everyone else will simply see it as theft and that's it.

Re:Property Rights

[Momomoto]

With regards to point 6), while it may not be legal for you to make copies of your archive and give those away, it is legal, in Canada anyway, to lend your original to someone and then have them copy it.

Re:Property Rights

[Kjella]

1) Not relevant. Among your rights as a copyright holder is the right to be stupid. If they could have made more money, if they should have given people a free trial to create sales but choose not to, that is their choice.

2) See #1. Also, the rental market is a distribution channel. You claim P2P works as a marketing channel. Apples and oranges.

3) Not exactly sure what you're getting at. Yes, there are several copyrights, lyrics, music, performance and compilation. Not sure what you're getting at since each can be held by a separate party. A compilation can e.g. be "Absolute music 43", which has its own copyright protection different from the individual songs. That copyright doesn't extend that of any individual song though.

4) Arguably, but only based on prior legal precedent, not explicitly enumerated. And there is no clause for the copyright holders to make this easy or at all possible.

5) Again, based on legal precedent yes you can. On the other hand, again there is no clause for the copyright holders to make this easy or at all possible. If it is locked to your player, so be it.

6a) See #1, and quite likely illegal. While a missed public TV broadcast you give to a friend is a "reoffer" of something he could have seen may be considered fair use, a copy of premium channels, PPV or a DVD is probably not.

Quite simply because it reduces the potential new sales. Note: This depends on context. Forcing resales by e.g. scratched disks is different, but here we're talking about a person who has bought nothing, and has no right to own a copy.

6b) This actually depends on what legal doctrine you follow. Some regards laws as embodiments of right and wrong, in which case enforcability is not relevant. This is also why we recognize some laws as "right" even though most break it, like speeding.

7) They have defined "commercial" also as "exchange for other illegally copied material". If you tried to sell it for other items or swap it for other services (you mow my lawn, and I'll burn you a copy) you will see it has a value. If you exchange that value in US currency or not, it still happens.

Damage is not modified by outside events. If the RIAA suing a 12yo girl for $1,000 and it costs them $10,000 in bad PR, they don't get to sue for $11,000. Likewise, if you pirated for $1,000 and generated $10,000 in sales for them, you still get sued for $1,000. If that had been a better profit model for them, see #1.

Summary:
In short, I feel your post is nagging about how they should choose a different business model. That is just a rant. The only real question here is by what means they are allowed to protect their business plan, what is an acceptable business practise and not. Beyond that, anyone is free to choose their own model. If I want to charge you $1,000,000 to hear me singing in the shower, that's my choice. Not yours, even if you think you have a better plan.

Kjella

Re:Property Rights

[iamnotanumber6]

4) You certainly have the right to make archive copies and/or to use that copy and keep the "master/original" safely stored for safe keeping.

not if you live in the U.S., not anymore.

under the DMCA it is illegal to make an otherwise-legal archive copy if that involves circumventing a copy protection scheme.

Re:Property Rights

[hhawk]

Horse and Cart.

If they had killed the VCR (e.g., Betamax) then there wouldn't be any players in homes and then yes, as you confirm, "thousands, if not tens of thousands, of copies of each video on DVD" would never have been sold.

Re:Property Rights

[hhawk]

"under the DMCA it is illegal to make an otherwise-legal archive copy if that involves circumventing a copy protection scheme."

has that held up in court?

Re:Property Rights

[hhawk]

Let's just say I stick to a libertarian view of property rights and criminal penalties. The penalty shouldn't be greater than the crime and when the "crime" makes money (ok hard to prove) for the rights holder, there isn't any crime or there at least isn't any penalty.

In terms of property rights, if you want to keep your property private please do so. Keep the Madonna song just "produced" in a safe where no one can hear it. If you put it out in to the public, via copyright, or other forms of publication, then you have given up a great deal of control over it and ultimately, if not immediately, agree to put it into the public domain.

It's the record companies that put this stuff out in public, in plain view. I'm sorry that gives them some thought that they will still some how retain control over it.

DMCA wise, does recording a song as it plays out of the speaker violate copy-protection? What about taking a picture of some text on a screen that comes from a secure "E-BOOK"?

As someone else here has written, Copyright without fair use is not constitutional. Yes, you can publish a book in an INK that can't be photocopied, but if someone has a camera that can copy it, does that Camera really become a criminal's tool?

Re:Property Rights

[hhawk]

Oh, and there are always ways to make copies that don't violate the copy protection, unless they make a book you can't read or a CD you can't listen too.

Not fair use - unregulated use!

[superdude72]

For the thousandth time: Copyright regulates *distribution*. It simply doesn't apply to making a copy for my own use. I can make as many copies as I want for myself and the copyright holder has no right to any control over this, provided I don't distribute the copies. I don't need a "fair use" exemption--the law simply doesn't apply.

"Fair use" is an exception to the law. This is what permits me to reprint verbatim part of a copyrighted work in, say, a book review, and publish that review without violating copyright.

This is what is so evil about the DMCA. It enables copyright holders to invent new rights for themselves--such as the right to prevent me from making copies for personal use--with DRM technology, then enforce that new right by making it illegal for me to circumvent the DRM.

Re:Not fair use - unregulated use!

[omb]

Sorry, The first part of your comment is right on, the second, re the DMCA, is much more problematic.

Thankfully Federal Courts have already de-fanged DMCA in the Lexmark case, by looking behind anti-circumvention to the goal of the plaintiff.

This means that almost all scams like, Lexmark's, are not worth litigating, and my own guess is the entire bill is un-constitutional; the message is that these people are no better at drafting law for their tame Congress-Critters to pass than they are at applied Cryptography!

Re:Not fair use - unregulated use!

[cpt kangarooski]

For the thousandth time: Copyright regulates *distribution*. It simply doesn't apply to making a copy for my own use.

For the thousandth time, you're wrong.

There are numerous exclusive rights compromising copyright. One is distribution, but reproduction is another. Read 17 USC 106.

Re:Not fair use - unregulated use!

[superdude72]

There are numerous exclusive rights compromising copyright. One is distribution, but reproduction is another. Read 17 USC 106

I never said I had an affirmative right to make copies for personal use. The reason I can legally make copies for personal use isn't a specific "fair use" exception; rather, it's that since these copies do not diminish the value of the copyright, they aren't actionable. Therefore, this isn't a fair use as it isn't specifically exempted. It's simply unregulated.

If the music industry could prove their business is damaged by people ripping CDs to listen to on their iPods, this might be actionable. But they have treaded lightly here. Perhaps they are afraid of a backlash that would end with an affirmative "right to copy for personal use" being written into the law. Instead they've made sneaky end-runs such as the DMCA. They don't want to openly demand that you pay once for the CD and again for a copy you can listen to on your iPod, so they'll try to make that the de facto situation through DRM.

Re:Not fair use - unregulated use!

[cpt kangarooski]

The reason I can legally make copies for personal use isn't a specific "fair use" exception; rather, it's that since these copies do not diminish the value of the copyright, they aren't actionable.

Wrong.

17 USC 501 and 106 prohibit reproduction of the work, period, except where specifically excepted. They don't say a word about limiting actionable reproduction where damages result:

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.

17 USC 501(a).

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;

17 USC 106.

So I've destroyed your claim that copyright does not extend to personal use infringements from the get go. You can't even rebut this, since all you could possibly hope for would be a specific exemption, and you've said that that's not how it's structured.

I'm forced to conclude that you're either stupid or lying. I'd prefer to think of you as stupid, and to hope that in the future you will not make a claim about something before carefully verifying it first.

Re:Not fair use - unregulated use!

[SilverspurG]

So I've destroyed your claim

What is this, high school debate?

Cpt. Kangarooski... you are a legal shill. Try being a decent human being for an hour. I imagine you'll experience something similar to what most people experience when they have a deeply religious moving experience.

Re:Not fair use - unregulated use!

[cpt kangarooski]

So you've admitted that you were wrong? I don't see you defending your claim.

Try being a decent human being for an hour. I imagine you'll experience something similar to what most people experience when they have a deeply religious moving experience.

I am a decent human being, but that doesn't excuse you from being wrong about an easily verifiable fact. You were demonstrably wrong, and I have corrected you.

Re:Not fair use - unregulated use!

[SilverspurG]

I am a decent human being

You're an argumentative shill who values precedent and subordinate laws above what's written in the only document which gives the government any legitimate authority to operate in the legal realm.

Re:Not fair use - unregulated use!

[cpt kangarooski]

If I am a shill, who am I shilling for, pray?

I do apologize for confusing you with the original poster -- you haven't made the wrong claim he did (though you make plenty of wrong claims), but I fail to see why you're responding unless you agree with him, in which case I'd still like to see some proof.

Re:Not fair use - unregulated use!

[SilverspurG]

If I am a shill, who am I shilling for

I have no idea who pays your bills.

pray?

Every morning, usually from the moment that I am consciously awake. I pray that people like you will investigate the true nature of the law going back to the original document that makes the government anything more than an organized guido cartel.

Re:Not fair use - unregulated use!

[superdude72]

They don't say a word about limiting actionable reproduction where damages result:

They don't have to. It's torts 101. You're not really a lawyer, are you?

Re:Not fair use - unregulated use!

[cpt kangarooski]

I am really a lawyer. What's more, copyright is my main practice area.

While copyright can be thought of as being tort-like, it is entirely statutory in nature for our purposes. The common law of torts (or common law of copyrights) doesn't really apply, since statutes override common law.

Statutory copyright law is very clear that remedies are available regardless of damages. If you want to persist in your claim that some damages are required, you'll need to cite to some authority in support of your position. This means either the statutes, or a relevant case. Copyright is a fairly specialized area; a generic tort case won't suffice.

well, yes and no

[Anonymous Coward]

If you argue analogy X in court and the court buys your argument and adopts it as part of the basis of a ruling in your favor, you're going to be estopped from arguing the contrary of your initial argument in the future (unless that decision is vacated or overruled).

It's true it all depends on the ruling, but the nature of the ruling will affect whether or not parties are bound by arguments they advancecd in court.

MGM is owned by Sony

[tepples]

A movie company saying that it is legal to rip audio CDs isn't really big news.

Apart from the soundtrak albums that other posters mentioned, MGM is owned by Sony, which owns the Sony BMG record labels and Sony ATV music publisher. In fact, Sony is the only major motion picture studio that still owns a major record label, as Warner and Universal have spun off their music assets.

MGM loses before the verdict is even in

[Rightcoast]

Like the article says:

But they've now conceded the contrary in open court, so if they actually win this case they ll be barred from challenging ripping in the future under the doctrine of judicial estoppel.

It is of course obvious to most us that this is allowed, and has been for some time. There are many people who aren't sure if this is legal or not, and as they find out it is, will begin to wonder:

If I can rip a Song off of my compact disk, what makes it so wrong to rip one I have paid for and my kid scratched, broke, etc.

I wonder if the major players in litigation realize that by taking these cases to court, they are hurting their cause. The more people become educated though soundbytes alone, the less power over our rights the MGM's of the world will have.

not the RIAA

[Anonymous Coward]

RIAA would not give them this right...now what would be interesting if they say you have the right to rip your own DVD and store it.

You mean "patent issues"

[tepples]

Again, nothing you read on Slashdot is legal advice.

Although it should be legal to rip a DVD to make a backup, there are IP issues with using DeCSS. DVD player manufacturers must pay a licensing fee to use the DVD format.

Given the vagueness of the term "intellectual property", it's best to call these copyright, patent, or trade secret issues what they are. In this case, most DeCSS-based DVD players appear to violate patents on MPEG-2 video and Dolby Digital audio.

Re:But they weren't going after rippers to begin w

[dalutong]

I highly doubt that this really the big concession that the ZDNet blog says it is.

Ah, but it is. Admitting that people have _any_ rights to their purchase (other than listening to it in its original form) is a big step. After all, you can't argue that you have the right to share something legally until you have crossed the very basic step of establishing that you have the right to do something with it besides listen to it on the original medium.

Re:But they weren't going after rippers to begin w

[NanoGator]

"Have the record companies have ever even threatened to prosecute people who rip music from CDs and put it on their portable MP3 players? "

They have attempted to 'protect' the discs so that ripping wasn't possible.

Keep telling yourself that...

[ShatteredDream]

They were also professions largely consisting of two classes of people: the idle rich and the dedicated artist who was willing to live in poverty. Copyright law has made it possible for normal people to at least make some money off of their creative works.

The question is to what degree should we give legal protections? I happen to support the RIAA lawsuits since I realized that most of the people who I saw doing the file sharing when I lived on campus were students who could afford the real deal.

Go ahead, get rid of copyright law and you'll not just get rid of Brittney Spears, but also probably every band you like. Without copyright law, people would have no incentive at all to write music since anyone could play it without paying them. So much music today is written by separate song writers who aren't affiliated with the band that you're basically proposing that we give legitimacy to fucking over the little guy.

Btw, getting rid of copyrights will also destroy every open source project as some greedy company would be able to easily rip off the hard work of the developers. They come in once the project is mature, make it proprietary, close the source and sell it at a profit tied to something cool that sells. The small developer has then no legal recourse since there is no copyright law at all to protect their creation.

Re:Keep telling yourself that...

[Anonymous Coward]

get rid of copyright law and you'll not just get rid of Brittney Spears, but also probably every band you like. Without copyright law, people would have no incentive at all to write music since anyone could play it without paying them

You're not even a troll. You're a shill.

At one time I believed the things which you say. Then I sat down and thought about it for a while, applied some real life experience, and realized that you're simply full of sh_t. Music and creativity has always existed. People that want to share it do. People who don't want to share it don't. Those who are in it expressly for profit are careful about who they share it with and who they don't--they treat it like a secret to be shared only with people they trust.

The only thing copyright law does is provide a safety net for the crybabies who didn't properly plan their business model ahead of time.

The media industry is the only industry which doesn't have generic products or any significant competetition. Guess why? Even the medical industry, with its tens of thousands of patents, has generics and hot competition. You know how they protect their products? Not with silly copyright laws (those are final approaches). They don't sell their intellectual property to every 8 year old with extra lunch money.

Consider the target audience and tell me if the products of the media industry should even qualify for copyright protection anymore. The *AA loses credibility every time they open their mouth.

Re:Keep telling yourself that...

[Anonymous Coward]

However, we still have the idle rich and the overworked poor.

I can start up as a plumber today after taking a few exams. Because the knowledge (IP) is not locked up, does that mean there are no plumbers?

And to your final point, the issue then becomes why would you buy the closed version. No copyrights, just take a copy and use it. If you use the OSS version, you get the source code for free.

Re:Keep telling yourself that...

[Stalyn]

Without copyright law, people would have no incentive at all to write music since anyone could play it without paying them.

no incentive... how about being creative?... the money earned afterwards is just a bonus.

Btw, getting rid of copyrights will also destroy every open source project as some greedy company would be able to easily rip off the hard work of the developers.

If you eliminate IP then selling ideas would be against the law. All ideas would be free and without copyrights any idea is public domain. I mean of course you wouldn't be able to provide yourself a means to live if you were in the trade of ideas.

However maybe there is a business model or economic system that can provide a means to live for those who do work in the trade of ideas. Just because there doesn't seem to exist one currently doesn't mean there will never exist one.

Re:Keep telling yourself that...

[Anonymous Coward]

If you eliminate IP then selling ideas would be against the law

Don't say that. That's not even close to true.

Btw, getting rid of copyrights will also destroy every open source project as some greedy company would be able to easily rip off the hard work of the developers

As if open source currently relies on lawyers and lawsuits enforcing copyright to protect them. There already instances of companies stealing open source ideas. What does the open source community do? Since they don't have billions of dollars in a legal budget, they cope and move on. They still manage to survive. Removal of copyright law would change the landscape of the economy and industry so significantly that the concept of open source and the influence of code copying and sharing would have significantly different roles in the overall scheme of things. Your shill-like argument depends on a society which is dependent on litigation, strife, conflict, and selfish greed.

That's what we're trying to undo.

Re:Keep telling yourself that...

[poopdeville]

Btw, getting rid of copyrights will also destroy every open source project as some greedy company would be able to easily rip off the hard work of the developers. They come in once the project is mature, make it proprietary, close the source and sell it at a profit tied to something cool that sells. The small developer has then no legal recourse since there is no copyright law at all to protect their creation.

That's really stupid. In order for a company to turn an open sourced project into a closed one, they'd have to find and destroy every copy of the project's source code. Otherwise, they would face competition from the OSS community -- and would likely lose.

Re:Keep telling yourself that...

[Stalyn]

Don't say that. That's not even close to true.

If there would exist no property rights to ideas then how can one sell them? You first need to prove property rights of said item to sell it.

The rest of your comment does not apply to me since you mistakenly took a comment I put in italic as my own.

Re:Keep telling yourself that...

[Stonehand]

Money helps. In particular, unless you're independently wealthy or have a paying patron, it's going to be difficult to devote the time required to become a competent artist or other creative worker rather than a mere hobbyist.

How often, for instance, does one see good novels from writers who do their writing only in their off-hours?

Re:Keep telling yourself that...

[Stonehand]

Not necessarily.

They merely have to offer what would be a more sellable alternative, through

(a) support services, and
(b) better responsiveness

With regards to (a), OS doesn't cover customer support. That's still going to take money, because few people will volunteer to support commercial software installation and troubleshooting.

With regards to (b), it's not an unusual refrain in the OS world to say "We really aren't interested in writing this. You have the source and the interest, so why don't you do it?". A for-profit company can *pay* developers to make them interested in developing even features that OS developers aren't necessarily both skilled and interested in. Likewise, OS developers may be more interested in writing code than doing serious regression testing and examining migration issues -- which is something that will concern customers which /cannot/ afford to be beta-testers on their industrial-scale systems which must have good, stable uptime. In addition, they could capitalize on anything that the OS community *did* do -- after it seems to be stable and useful.

Re:Keep telling yourself that...

[Stalyn]

well what comes first... being creative and creating the art or trying to make art for money. the artists ability to create art is something of a reflex... automatic. those who make art for money are not really artists... in my opinion anyway. i wouldn't consider their "art" art.

anyway i could list you many artists who never made any money off their art but did it anyway... however i'll just name you one... Van Gogh.

Re:Keep telling yourself that...

[Stonehand]

For most people, rent and food are rather more immediate priorities.

And as for Van Gogh, well, he ended up poor and a bit mentally unbalanced -- a prime example of the OP's note that historically, artists were either feeding off of wealthy patrons, or ended up impoverished. That's not a very encouraging model for people who would mind poverty, and that's the great bulk of the population.

Re:Keep telling yourself that...

[bit01]

Let me correct your blatant commercial propaganda for you:

They were also professions largely consisting of two classes of people: the idle rich and the dedicated artist who was willing to live often quite well. Copyright law has made it possible for very few normal people to at least make some money off of their creative works. The vast majority of normal people are negatively impacted by excessive copyright law.

The question is to what degree should we give legal protections? It's not all or nothing, the logical fallacy of a false dilemma. I happen to support the RIAA lawsuits since I realized that most of the people who I saw doing the file sharing when I lived on campus were students who could afford the real deal. Just because they can afford it doesn't mean it's right.

Go ahead, get rid of copyright law and you'll not just get rid of a few artists like Brittney Spears who depend primarily on marketing, not copyright, but also probably a few bands you like but who will usually make money on live performances. Without copyright law, people would have less incentive at all to write music since some people would play it without paying them. So much music today is written by separate song writers who aren't affiliated with the band that you're basically proposing that new song writing be work for hire like most other jobs on the planet..

Btw, getting rid of copyrights will also destroy no open source project as some greedy company can't easily rip off the hard work of the developers. They come in once the project is mature, can't make it proprietary, close their version of the source which is immediately reverse engineered if necessary and sell it at a profit tied to something cool that sells. And good luck to them. The small developer needs no legal recourse since there is no copyright law at all to protect their creation or the software component of the "rip-off" company.

In summary, please take your commercial propaganda elsewhere. In some ways you're worse than a communist - at least they try to be honest.

It's not a question copyright or no copyright. More correctly called copy-restriction-privilege (CRP) there is a world of possibilities. Just one example I would like to see is that, like trademarks which become generic, CRP should lapse on anything that's become an industry standard (including music that's become a standard). Other changes might include drastically shortening the time period of CRP, CRP not applying for non-profit use, CRP not applying if the item in question is not widely available for sale and using CRP to block most forms of interroperable competition being highly illegal. The legislators and the lawyers are asleep at the wheel at the moment.

Re:Keep telling yourself that...

[Stalyn]

For most people, rent and food are rather more immediate priorities.

Will you please get the point that artists who are not the majority sometimes are willing to starve for their art. The creative human function sometimes outrules the stomach. just because you can't imagine yourself doing it doesnt mean there doesnt exist people who will.

Re:Keep telling yourself that...

[SilverspurG]

If there would exist no property rights to ideas then how can one sell them? You first need to prove property rights of said item to sell it.

People will buy anything and there is no jurisdiction for the federal government to tell you that you can't provide the service of your intellect for a price. Employment.

There is no such thing as intellectual property, but I'll be happy to pay you money if you know how to do what I need to get done.

Re:Keep telling yourself that...

[SilverspurG]

In order for a company to turn an open sourced project into a closed one, they'd have to find and destroy every copy of the project's source code. Otherwise, they would face competition from the OSS community -- and would likely lose.

Indeed.

After my initial response I had some time to think about it on the drive home from work. I thought,"Who cares if some company steals my work? Let them steal it. Let them develop and refine it. In the absence of this pesky trouble about copyright and intellectual property, I'll just steal it back."

I guess that's what I meant when I said that the absence of copyright law and intellectual property would change the entire face of the industry. Open source developers and companies would engage in what would become creative, cooperative, and mutually beneficial competition. Under the current system, it's like the worst product doing everything it can to strangle off any creative competitor by denying them corporate employment because the product doesn't fall under the iron fist of proprietary copyrights.

I vote for the world without the copyright and intellectual property bull-honky.

Re:Keep telling yourself that...

[Stalyn]

Oh yes services can be paid for. I totally agree with that. There is a business model where intellects can be paid for services without intellectual property. However not all ideas entail a service to be done. If I write a story surely you can read it yourself without me.

Re:Keep telling yourself that...

[SilverspurG]

If I write a story

And, in the absence of copyright law, you're still free to sell that story. Let's say there's no copyright law and you print off a single copy, spend weeks handmaking a beautiful cover for it, and then sell it to some 10-year old who takes it to the local library and photocopies it and gives it away to all their friends (allowing only for the cost of photocopying it). You'd be a dumbass and I don't want my taxpayer money to support you. Before you release any easily copied product you need to consider, just like any other business, the nature of your customers, your production, and your supply lines.

Now, say you write a book a get it properly lined up with a proper publisher and, in the absence of copyright law, your book hits the store shelves and a single 10-year old buys it. If the book were properly advertised before the release then there will be at least a dozen 10-year olds in to buy the book before the first one can read it and hype it up to their friends enough where they ask for photocopies. By the time that single 10-year old saves enough lunch money for the photocopier and spends the time pressing the "GO" button you'll have a reasonable customer base such that the other ten year olds, rather than waiting for their cheap photocopied edition, will have prodded their parents into shelling out the $5 for a real paperback.

The world will continue to work just fine in the absence of copyright law.

Re:Keep telling yourself that...

[Stalyn]

Well without copyright laws you are not really buying my story but the paper it is printed on. Again I have a problem with the ability to sell things you have no ownership claims of. But that scenario is one without any intellectual property. I guess we can have a second scenario, one without copyright laws. However basically you are buying the paper and not my story.

I could do what they used to do in ancient Greece. I could write my story on a scroll and read it in public. Have a little bucket where I could get donations. Then hopefully some rich patron will invite me to their toga party where I can read my story and take questions. Then again this is a service.

How do you make money off ideas that entail no serivce? If I write a story a publisher could just steal it and print it on paper. I would have no rights to any profits they make. My feeling is pure ideas and not applied ones... need copyright law or something like it.

Re:Keep telling yourself that...

[plague3106]

They were also professions largely consisting of two classes of people: the idle rich and the dedicated artist who was willing to live in poverty. Copyright law has made it possible for normal people to at least make some money off of their creative works. ... Go ahead, get rid of copyright law and you'll not just get rid of Brittney Spears, but also probably every band you like. Without copyright law, people would have no incentive at all to write music since anyone could play it without paying them.

Um, which is it? They'd be artists that are idle rich or willing poor, or people wouldn't create anything at all with a monetary incentive?

Re:Keep telling yourself that...

[SilverspurG]

If I write a story a publisher could just steal it and print it on paper

Let's get back to reality. If you plan on making money off of something then don't put it where anyone can get to it.

I never advocated leaving your front door unlocked with a sign that says,"Come in and take whatever you like."

Re:Keep telling yourself that...

[ChatHuant]

They were also professions largely consisting of two classes of people: the idle rich and the dedicated artist who was willing to live in poverty. Copyright law has made it possible for normal people to at least make some money off of their creative works

Or an artist could find a rich patron; somebody willing to pay for the artist's subsistence in exchange for art. The result is, of course, control over the artist's output. So we see (as in many classical musical and literary works) ridiculously exaggerated flattery of the artist's Maecenas, and uncritical support of the particular political or economical position of the above mentioned patron.

I don't believe it would be good for the society to return to this kind of situation: consider that the ones that can afford supporting artists are exactly the ones that shouldn't be in control of even more propaganda tools.

Re:Keep telling yourself that...

[Anonymous Coward]

Dedicated artists still live in poverty. All that has changed is that media labels can promote a handful of people and make scads of money off of somebody else's talent at the cost of society in general.

Re:Keep telling yourself that...

[GileadGreene]

Will you please get the point that artists who are not the majority sometimes are willing to starve for their art.

And there's nothing stopping them from doing that right now. However, under copyright law, people who don't want to starve can also produce art. No one's forcing you to buy their stuff - you can choose only to support starving artists if you prefer. Or not support those same starving artists, if you want to just make make use of their work without paying them for it.

Re:Keep telling yourself that...

[Stalyn]

Without property and money there would still exist art and good art as well. Also without propery and money there would exist ideas and good ideas as well. The human function of creativity is a priori any function of gaining material wealth.

The idea that somehow without copyright law or intellectual property, art and ideas would ceast to exist is simply wrong.

Re:Keep telling yourself that...

[arminw]

...no incentive at all to write music...

People have played and written music for millenia, long before anyone thought of copyright and making money from it. There are STILL (can you believe it) people who love music who also have day jobs to pay their bills. As Justice Oconnor wrote, copyright is to benefit society as a whole, not just a few artists to get rich. It was especially not intended for mega corporations to get rich from the creativity of talented artists. If there were no such thing as copyright, or if it were at least as it was originally, there still would artists who would share their work, because art and beauty is part of the human spirit and human creativity which mirrors our Creator who placed this urge to create within. Blind chance evolutionary processes cannot explain this human urge for the expression of art and beauty. Making music or art is not a requirement for the survival of the fittest.

Re:Keep telling yourself that...

[I'm Don Giovanni]

"Without property and money there would still exist art and good art as well."

How would big epics like the LOTR movies get made without money? Much potential creativity would be squashed without the means to fund it.

Re:Keep telling yourself that...

[SilverspurG]

How would big epics like the LOTR movies get made without money?

Not that I was Tolkien's personal friend but I don't recall anyone funding him specifically to write those books. As for the production... performers will always perform good works. Shakespeare, Beethoven, Bach... any of them. They were all performed long before the long reaching arm of intellectual property laws.

LotR is just that good. Someone, at some point, was going to fund its performance sooner or later. Maybe Jackson wouldn't have been in on it. Maybe the actors would've been different. It would have always been just as good.

Re:Keep telling yourself that...

[Anonymous Coward]

why not? You'd be shifting artists from being controlled by one megacorp to another.

Re:Keep telling yourself that...

[GileadGreene]

I did not say that copyright was the only thing keeping creativity alive. My point was that nothing is forcing you to use the art produced by those who do choose to use the existing copyright law. Nor is there anything forcing you not to use the art produced by those who don't believe in copyright law.

Art would not cease to exist. Whether or not you would get the same kind, quantity, or quality of art is a whole other question.

BTW, just out of interest, how much art (and/or other "intellectual property") do you regularly produce and give away? Or do you simply consume?

Re:Keep telling yourself that...

[Stalyn]

First of all I don't endorse the removal of copyright law nor the removal of intellectual property. My point which I've had to repeat over and over again is that art/ideas/creativity existed before copyright/IP law. And also will continue to exist if these things are removed.

BTW, just out of interest, how much art (and/or other "intellectual property") do you regularly produce and give away? Or do you simply consume?

I don't see any reason to get personal but if you think this method of attack somehow strengthens whatever argument you have, you are wrong. During my high school years I wrote some code for different projects that are GPL. Some of it might be floating around but that was awhile ago. Currently I'm a mathematics major at university, I have yet to publish but when I do of course it will be public domain. Anyway I never represented myself as some gifted person who gives away his talents for free. Nor did I suggest that one should.

My point which I will repeat one last time is creativity is instilled in the human condition. A person does not first become aware of his material needs then create art to fulfill them. Actually sometimes its the opposite where in the complete desperation of material and spiritual wealth, something beautiful is created.

Re:Keep telling yourself that...

[I'm Don Giovanni]

Not that I was Tolkien's personal friend but I don't recall anyone funding him specifically to write those books.

Given that I specicically asked how the LOTR *movies* would get made without funding, your point regarding the books is irrelevant. Secondly, are you claiming he made no money from the books? The poster to whom I responded claimed, "Without property and money there would still exist art and good art as well." It may be that art would still exist, but there's no evidence to support the notion that it would exist in the same quantity. And it could very well be that the LOTR books wouldn't have been written without some expectation of compensation. We KNOW that the LOTR *movies* wouldn't have been made "Without property and money".

As for the production... performers will always perform good works. Shakespeare, Beethoven, Bach... any of them. They were all performed long before the long reaching arm of intellectual property laws.

The artists that you cite were paid, so this again doesn't support the claim, "Without property and money there would still exist art and good art as well. "

LotR is just that good. Someone, at some point, was going to fund its performance sooner or later. Maybe Jackson wouldn't have been in on it. Maybe the actors would've been different. It would have always been just as good.

Each of the LOTR movies cost over 100 million dollars to produce. So I again ask, how would big epics get made without funding?

It's not surprising that programmers that think it's the highest virtue to program for free think that artists should work for free as well. And that "starving" artists are inherently superior to paid artists. Both notions are laughable, both from a practicle standpoint and from a historical one. Maybe you want to return to an era where "art" was available mainly to the rich that were able to serve as artists' patrons for their own amusement and where artists that weren't the beneficiaries of patrons were "starving artists". But just like we got rid of the fuedal system, so we got rid of the patronage and starving artist systems as well, and this is a GOOD thing.

Many here spout that content producers should embrace the modern economic realites of today's technology, while at the same time sing the virtues of regressive economic systems of the past. Wow.

Re:Keep telling yourself that...

[GileadGreene]

My point which I've had to repeat over and over again is that art/ideas/creativity existed before copyright/IP law. And also will continue to exist if these things are removed.

And my point did not negate your point. Nor did it seek to. My point was that your point has little to do with copyright law as it exists right now.

I don't see any reason to get personal but if you think this method of attack somehow strengthens whatever argument you have, you are wrong.

I was not attempting to attack you, nor to make an argument. I was simply trying to ascertain the context in which your views about copyright and creation were formed. It is easy to talk about the relationship "creativity" and money in the abstract when one is not depending on their creativity to supply their livelihood.

Currently I'm a mathematics major at university, I have yet to publish but when I do of course it will be public domain

Have you actually looked at the copyright clauses for most academic journals? Don't count on your publications being public domain (although your ideas may well be). Having said that, I should note that in fact you are being paid (by the university, and by funding agencies you get grants from) to produce those ideas. Would you still be creating and openly publishing your ideas if you weren't being funded to do it?

My point which I will repeat one last time is creativity is instilled in the human condition. A person does not first become aware of his material needs then create art to fulfill them.

Which is true. I haven't denied that. The problem is that people do have material needs. And having created something which others feel is valuable, and from which they might thereby derive some material wealth, they understandably want to be recompensed for the time and effort that went into creating whatever it is they have come up with, so that they might live to create further things. Creativity may well be "instilled in the human condition", but so is the desire to stay alive.

Actually sometimes its the opposite where in the complete desperation of material and spiritual wealth, something beautiful is created.

Which is very easy to say when you are not the one suffering from the lack of material and spiritual wealth.

Re:Keep telling yourself that...

[Deliveranc3]

The lowly pencil.

It's not copywrited, people still make them. And make money off them.

They just work you don't need to make them better every day and year.

I.P. needs to follow in one of the greatest traditions of all time.

People should have the right to the best tool for the job especially if it's information which can be distributed for free.

Re:Keep telling yourself that...

[ekuns]

Go ahead, get rid of copyright law and you'll not just get rid of Brittney Spears, but also probably every band you like.

When it comes to actual CASH that a musical artist sees, most of that cash comes from touring and not from CD sales. If you like David Bowie and someone else is touring playing his music, will you pay the same amount to see the other band that you would pay to see David Bowie? Probably not. Even if others play the same music, only David Bowie plays it like he does, and that is a HUGE part of what people like.

Also, your argument above would make "cover bands" or "tribute bands" illegal. Just two nights ago I was at a place that had a "tribute band" for Pearl Jam. (By coincidence and not because the band was there.) Now, does the existence of this tribute band cause the actual Pearl Jam to have no incentive to write or produce music? If you say "yes" then I don't know what universe you are in.

This "without copyright, no-one would ever produce anything" straw man argument is always trotted out in these debates, and that argument is equally weak every time I hear it.

Having said all of this, I hated every RIAA and MPAA lawsuit until they actually started suing those who were doing the wrong thing -- the people who were uploading music to be shared. I completely support the RIAA and MPAA's ethical right to sue those who upload music illegally to be shared. But I do NOT support lawsuits against toolmakers when those tools have a substantial legal and ethical use. (Such as bittorrent, decss, and others.)

Re:Keep telling yourself that...

[cpt kangarooski]

How do you make money off ideas that entail no serivce? If I write a story a publisher could just steal it and print it on paper. I would have no rights to any profits they make.

Obviously the marginal costs must be low, or else no one would try to pirate it. People often pirate music; they do not pirate gothic cathedrals. (In fact, most gothic cathedrals are in the public domain, and still rarely get reproduced)

So your trick is to have low fixed costs, and to take advantage of being first to market (since it will take time for pirates to be able to gear up so as to seriously compete with you) so as to recoup them.

Since nothing prevents you from using the same or perhaps better technology than pirates use (e.g. CD factories have lower marginal costs than people that burn CDs), you should aim for maximum efficiency, and pursue whatever profit is available. Pirates also frequently pursue profit -- this means it's there. Could be less than you'd like, but it's there. After all, the work is at this point a commodity, and you don't have a monopoly on it. The market dictates that actors must pursue efficiency, which of course benefits everyone, more or less.

Plus, not everything will face pirates that are competing for profits. Most works suck. Sturgeon was, if anything, an optimist. And furthermore, most works make most of their profit almost immediately. After a few months, you're in serious diminishing returns land. This is why works go out of print during their copyright term -- they're not profitable to print, stock, or sell. A handful of works have long-term vitality, but it's a fraction of a percentage at best. And they may remain profitable even without a copyright; I paid good money for a copy of Shakespeare, but I could've downloaded his works for free. There are still popular public domain works even today, where people really will pay good money for the copy itself.

Pirates will generally prefer to wait and see what works are profitable beyond the immediate term (since it takes them time to gear up, and this is how they avoid inefficiencies) but in the meantime, you can make quite a bit. Basically, you're taking the bigger gamble, and will do better if it pays off. If the work is a flop, it won't get pirated, but neither will you ever make money from it anyway. And this actually is the rule under copyright. Have you seen street vendors with bad copies of Ishtar, Gigli, Heaven's Gate, or Cutthroat Island?

Pirates not pursuing a profit are trickier, but will have finite resources since no one can afford to be so charitable that they can no longer have basic necessities that the charity relies on.

Frankly, I don't think there's much that can be done about the latter, and charity is admirable. After all, pirates, not monopolists, are to thank for ensuring that works become maximally widespread, that they survive, etc.

So probably they're a write-off, but while this might reduce the overall profit pool, it likely doesn't eliminate it.

Given all this, I personally don't advocate abolishing copyright, but I do think that it could be greatly reduced, and part of that includes reducing it to only cover the profit-oriented ground. (e.g. if you want to give copies away, that's allowed, but only the copyright holder could sell them) This is also far easier to enforce. It's easier to find and get damages out of pirates that have been making money than those that merely give stuff out in a one-way manner.

This may reduce the potential profit of works -- though there's a lot of non-profit piracy right now and it doesn't seem to be having that big an impact -- but it's probably a better policy given social norms and the difficulty of perfect enforcement.

Another side effect is that works will likely be lower in budget, but of course there is not an absolute correlation between budget and quality as many expensive flops and successful small projects can attest to. This might mean that big budget works are just not feasible in connecti

Re:Keep telling yourself that...

[dvdeug]

how about being creative?... the money earned afterwards is just a bonus.

Not if you actually want to work as an artist as a full-time job. Then the money is a necessity. If you don't want to work as an artist as a full-time job, then the amount of work you can produce is limited.

Re:Keep telling yourself that...

[mrchaotica]

Btw, getting rid of copyrights will also destroy every open source project as some greedy company would be able to easily rip off the hard work of the developers. They come in once the project is mature, make it proprietary, close the source and sell it at a profit tied to something cool that sells. The small developer has then no legal recourse since there is no copyright law at all to protect their creation.

Not at all, because anyone would have the right to help themselves to a copy of the "proprietary" version for free. Not to mention that anyone with access to the proprietary source (such as an employee) could waltz out with it and and share it with everyone. That employee could be in breach of some sort of contract law if he had a non-disclosure agreement, but the cat would be out of the bag and everybody else could use it freely.

Far from destroying every open source project, abolishing copyright would make everything open source!

Re:Keep telling yourself that...

[SilverspurG]

The artists that you cite were paid

Were they paid because some copyright law mandated that they were paid, or were they paid because the world Just Works (tm)?

The world will continue to Just Work in the absence of copyright and intellectual property law.

Re:Keep telling yourself that...

[Farmer Tim]

"When it comes to actual CASH that a musical artist sees, most of that cash comes from touring and not from CD sales. If you like David Bowie..."

Bad example. David Bowie has made a huge amount of money from record sales, and has taken huge losses on tours (remember the "Spiders from Mars" tour? The promoters certainly don't want to).

"Even if others play the same music, only David Bowie plays it like he does, and that is a HUGE part of what people like."

But the only reason so many want to see the real David Bowie is because they have heard his recordings promoted mercilessly, which is an investment made by his record company on the basis that they would make a return from exclusive distribution. Chances are if you'd heard someone else's versions of his songs first you'd prefer those versions. Never underestimate the human power for conservatism.

"Also, your argument above would make "cover bands" or "tribute bands" illegal."

Wait a minute...you're trying to say the parent post implied that keeping the laws exatly as they are will somehow make cover bands illegal. That just doesn't make any sense, and clearly isn't what the parent post was saying at all.

"Now, does the existence of this tribute band cause the actual Pearl Jam to have no incentive to write or produce music?"

No, because owning the copyright to the songs ensures Pearl Jam receive royalties (yes, even for live performances by other bands). But on the other hand, if there was no financial benefit to writing music Pearl Jam would probably be a cover band, since they would be able make just as much money and not have to work anywhere near as hard.

"This "without copyright, no-one would ever produce anything" straw man argument is always trotted out in these debates..."

It isn't exacly a straw man (since a "straw man" is a weak or illogical argument supposedly supporting your opponent's position specifically introduced for the purpose of providing an easily disproved statement in an attempt to falsely bolster one's own perceived competence in debate), but it isn't either wrong or right: it's an over-simplification. Without copyright people would produce art, true. However, there would be little corporate investment (including advertising and film royalties), which means large scale projects would be out of the question (not that an orchestra added anything to Metallica). Don't think it's true? Well, just look at three countries with lax IP enforcement: China, Malaysia and Indonesia. That's well over a quarter of the world's population (Indonesia's is around the 200 million mark), which you would think represents a significant market, yet the major labels are virtually invisible. It's no coincidence that those same countries, despite having high-tech manufacturing infrastructure, are also currently some of the least innovative countries; companies are prepared to invest in manufacturing, but not in R&D because they know any IP developed under those conditions will be leaked with little opportunity for redress.

Essentially, commercial funding is like any other loan: you'll only be approved if you can pay it back, and then some. So the statement is exaggerated and not universally true, but correct where corporate funding is essential because of the scope of a work.

"But I do NOT support lawsuits against toolmakers when those tools have a substantial legal and ethical use."

Again, it isn't all black and white. BitTorrent, rather than simply acting as a neutral file transfer protocol like Napster, actively encourages people to provide large quantities of data for upload using bandwith throttling as an incentive. Now if you consider the statistical realities that the vast majority do not hold copyrights to anything* and Open Source fandom (while laudable) is still the minority, what files could most people possibly offer to get the best possible bandwidth? The problem is that a line has been crossed here: it's becomes difficult to claim that a developer isn't contributing to copyright violation if the software is designed to encourage people to upload by quantity alone. IMO this particular feature may come back to bite some arse if it ever goes to court...

*Anything intended for a wider audience, at least.

Assigned rights

[tepples]

What I didn't say, is I'd like to see some type of legal challenge to the record companies copyright claiming that the finished song, music and performance is no different from the Album so that they can't claim the rights that have already been award to the creative arists.

U.S. copyright law grants copyright in the sound recordings on a CD to the recording artists, but by standard industry contract, the artists have assigned (i.e. given in exchange for money or other consideration) their copyright interests to a label. By "some type of legal challenge", are you asking for an antitrust-like challenge claiming that no major label allows recording artists to retain copyright?

As for the underlying song, the system of compensation is in general more fair to the songwriter, with the songwriter and music publisher splitting the royalties (which average about 8.5 cents per track in the United States) 50/50. However, songwriters who aren't with a major music publisher are still rawther vulnerable to nuisance lawsuits alleging similarity to an existing copyrighted work controlled by a major publisher.

Re:Assigned rights

[Anonymous Coward]

U.S. copyright law grants copyright in the sound recordings on a CD to the recording artists, but by standard industry contract, the artists have assigned (i.e. given in exchange for money or other consideration) their copyright interests to a label

Sounds like the standard industry contract is unconstitutional. At best any copyright lawsuits brought in the name of the companies should be dismissed. At worst the courts should nullify the standard industry contract.

The Constitution calls for reserving the rights to authors and inventors. Current copyright law isn't really doing that if it's allowing the industry to strongarm the artists into assigning the rights through a contract.

All hail King George. If you won't give him what he asks for he'll find some way to extort it from you.

Re:Assigned rights

[cpt kangarooski]

The Constitution calls for reserving the rights to authors and inventors. Current copyright law isn't really doing that if it's allowing the industry to strongarm the artists into assigning the rights through a contract.

No, the law is doing its job. Just because artists are willing to give away their rights doesn't mean that the rights didn't vest in them initially. In fact, it means that the rights must have done so, or else there'd be nothing to transfer.

The Constitution doesn't say a word about whether rights must remain with artists for their duration, and in fact every single copyright law in our history, including English ones that guided the framers, and the first federal one, allowed for copyrights to be assigned.

People have unequal bargaining positions. That's a fact of life. Taking away their ability to bargain doesn't help much.

Re:Assigned rights

[SilverspurG]

Just because artists are willing to give away their rights doesn't mean that the rights didn't vest in them initially

We've gone round on this before and I'd like to say flatly that I do not believe the same thing you do. The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail. The laws are not acting to protect the authors and inventors from the predatory position of the companies, who could take or leave the authors/inventors dead in a ditch while the author/inventor needs a paycheck to eat or sleep.

I suppose you support indentured servitude, perhaps with a clause for sexual services, if it were written properly into a contract?

I'll not debate this with you again. You're addicted to the law in the absence of regard for what's written in the only document which grants the government any legitimate power in this arena.

The Constitution doesn't say a word about whether rights must remain with artists

It sure does. It says exclusive rights to authors and inventors. On the other hand, it doesn't say a word about "Unless King George threatens to evict them and have them fired if they don't comply."

Taking away their ability to bargain doesn't help much.

Current laws regarding intellectual property take away the ability of the author or inventor to bargain by locking them into a one-time decision when it should allow the author or inventor the freedom to say,"Sorry. Your company sucks. I'm taking my ideas and going elsewhere."

Re:Assigned rights

[cpt kangarooski]

The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail.

So you're saying that I cannot lawfully sign an NDA? That if the police come to my door, have no warrant, and ask to conduct a search, that I cannot choose to let them in? That I cannot choose to testify against myself in court? That I cannot waive trial, or counsel, or jury?

Given that the world obviously isn't like that, don't you think that maybe you're wrong?

Most of what you're looking at are not rights granted by the Constitution, but rather rights guaranteed by the Constitution. The promise that the government will allow you to conduct your own affairs as you like, and will behave in certain ways, doesn't constrain you. The government cannot force you to speak or be silent, but you can of course choose either, and make agreements to that effect.

Some things aren't waivable, e.g. the 13th Amendment, but this is attributable to the way that they're written, not some universal principle.

Current laws regarding intellectual property take away the ability of the author or inventor to bargain by locking them into a one-time decision when it should allow the author or inventor the freedom to say,"Sorry. Your company sucks. I'm taking my ideas and going elsewhere."

So you're saying that in fact they can bargain. What you're upset about is a perception that artists can't go back on their word.

So... ten years after you sell your house, do you think that you ought to be able to march in and take it back? To say "Sorry, but it was a crappy deal, and I'm taking back my house and selling it to someone else."

Contract law is all about making promises binding. That's the idea. Sorry if you don't like it, but maybe you should be more careful in the future.

Re:Assigned rights

[SilverspurG]

Wow. I'm going to start by saying "Wow". You're brilliant at expanding and filling up space with legal bull-honky.

So you're saying that I cannot lawfully sign an NDA?

You can. But, if you can show that your ideas are your ideas, the government has no power to support a company litigating against you over your own ideas.

That if the police come to my door, have no warrant, and ask to conduct a search, that I cannot choose to let them in?

This has what to do with intellectual property law? This is covered by search and seizure without a warrant. If they have a proper warrant, then you have no right to be protected against the search and seizure. That's in the Constitution.

That I cannot choose to testify against myself in court? That I cannot waive trial, or counsel, or jury?

Constitutionally you can't waive those rights. I know. You're addicted to practice and precedent set by the current state of affairs.

Given that the world obviously isn't like that, don't you think that maybe you're wrong?

People like you have managed to funnel enough money to politicians and Supreme Court Justices to encourage them to look the other way when such abuses happen.

Some things aren't waivable, e.g. the 13th Amendment, but this is attributable to the way that they're written, not some universal principle.

On the contrary, they're waivable due to ignorance and the power that greed has over honest principle. You're a self-admitted lawyer. I'm sure you're familiar, first hand, with the practice of compromising the truth, morality, civility, and humane ideals in the interest of earning a larger paycheck.

What you're upset about is a perception that artists can't go back on their word.

Their word was given under terms of a contract which was unconstitutional. The contract is null and void in the eyes of the government. If a company is being abusive then, yes, a decent human being would support another's right to change their mind.

You've never changed your mind, eh? Figures.

So... ten years after you sell your house, do you think that you ought to be able to march in and take it back?

The house was legally bought and sold. If I sell my idea to a company, they legally bought it and I legally sold it but they do not have the right to keep me from using that idea to benefit someone else. That's the difference between tangible and intangible property. I sold them a particular instance of my idea but, under the Constitution, I still retain rights to continue to use that idea at my own whim. Constitutionally a company can never sue me for using my own intangible property.

Contract law is all about making promises binding

Quit being a troll. You know as well as I do that's only 50% of contract law. The other 50% is about breaking those contracts.

Sorry if you don't like it, but maybe you should be more careful in the future.

If only people of your ilk would be so inclined to tell that to the companies who sell CDs and DVDs to consumers. "Sorry if you don't like that I'm ripping this and putting it on the network but maybe you should be more careful in the future about who you sell to."

Cope.

Re:Assigned rights

[cpt kangarooski]

I listed several examples of how people might waive or contract away that which is protected by the Constitution.

If I can contract away my right to speak about some specific thing, how is that materially different from contracting away my a copyright to a specific work?

This is covered by search and seizure without a warrant.

And? If you consent to the search, no warrant is needed.

Constitutionally you can't waive [the rights against self-incrimination, counsel, trial, or jury]. I know.

Sure you can. Go get arrested for something, admit to the police that you did it (waiving your right against self incrimination), tell them you don't want a lawyer, and plead guilty, which avoids a trial (or plead innocent, but waive a jury, which will give you a bench trial in which the judge is the factfinder instead of the jury).

This is all everyday stuff.

People like you have managed to funnel enough money to politicians and Supreme Court Justices to encourage them to look the other way when such abuses happen.

For 295 years?

You're a self-admitted lawyer.

I'm not self-admitted. I was admitted by the Supreme Judicial Court of the Commonwealth of Massachusetts. ;)

Their word was given under terms of a contract which was unconstitutional. The contract is null and void in the eyes of the government.

A proposition which you haven't shown any support for, and which centuries of practice seem to rebut.

The house was legally bought and sold. If I sell my idea to a company, they legally bought it and I legally sold it but they do not have the right to keep me from using that idea to benefit someone else.

They do if you gave them that right. Which is what happens in an assignment.

Re:Assigned rights

[SilverspurG]

If I can contract away my right to speak about some specific thing

You can but, should at any time you choose to rescind that contract, the Constitution protects you because you still have those rights.

I can sell you my right to free speech. You may pay me. I may accept that money. You're a dumbass. At any time I may choose to reinvoke that right.

A right is like hair color. At any time I can change the color of my hair but, at the end of the day, my hair is still the same color.

And? If you consent to the search, no warrant is needed.

No warrant is needed but you now recognize that at any moment I can tell you to leave. Anything you gather after I tell you to leave is inadmissable because I am now recognizing my right to require you to have a warrant.

Go get arrested for something, admit to the police that you did it, tell them you don't want a lawyer, and plead guilty, which avoids a trial

Constitutionally, one moment after I've been convicted, I can require a full trial in accordance with my rights. They're free to say,"But you admitted to..." and I can say,"That was outside my authoritative rights. Now, within my rights, I choose to say nothing." At that point it's up to a jury of my peers to decide if my admission was valid or not. But, Constitutionally, I should be allowed to demand a new trial within my rights and they should be required, Constitutionally, to proove their case with my past testimoney weighed against my current silence taking into account any duress that may have been placed on me in the circumstances of my past testimony.

For 295 years?

It is sad that so much "past precedent" is accepted as truth without question, isn't it? What if past precedent dictates that the earth is flat? Does that make it so?

A proposition which you haven't shown any support for, and which centuries of practice seem to rebut.

Again we breach the area of bribery and greed. The Constitution guarantees rights to authors and inventors, not to beneficiaries or signatories. Cope.

They do if you gave them that right

The Constitution recognizes them but they have no right to that idea, as the Constitution only guarantees that exclusive right to me as the author or inventor.

Sorry. Let that be a lesson to you. Consider more carefully next time before attempting to swindle, strongarm, or extort an author or inventor.

Re:Assigned rights

[cpt kangarooski]

You can but, should at any time you choose to rescind that contract, the Constitution protects you because you still have those rights.

And yet, I can still recover damages from you for having breached the contract.

But, Constitutionally, I should be allowed to demand a new trial within my rights and they should be required, Constitutionally, to proove their case with my past testimoney weighed against my current silence taking into account any duress that may have been placed on me in the circumstances of my past testimony.

After your conviction, you've had your trial, and you're done. In fact, additional trials are precluded by double jeopardy.

Also, silence persuant to the 5th Amendment is not taken into consideration. If it were, the failure to testify on one's own behalf would almost certainly be taken as a sign of guilt.

So it seems as though your fantasy world has a remarkable constitution, quite different from anything real.

In the real world, assignment is a practice as old as copyright itself, endorsed by every authority in our legal tradition, and pretty clearly in full compliance with the Constitution.

You may dislike it, but you delude yourself, and mislead others to say anything more than that you -- apparently unreasonably -- dislike it.

Re:Assigned rights

[SilverspurG]

And yet, I can still recover damages from you for having breached the contract.

That's an abomination and the courts have no Constitutional authority to support it. You may recover damages from me but the government has no legitimate part in helping you do it.

After your conviction, you've had your trial, and you're done. In fact, additional trials are precluded by double jeopardy.

It's not my fault that you overstepped your Constitutional authority by violating my rights. I guess we'll have to say that the conviction is summarily overturned.

but you delude yourself

As a lawyer you're far more familiar with self-delusion than I could ever dream to be.

Re:Assigned rights

[cpt kangarooski]

That's an abomination and the courts have no Constitutional authority to support it.

So, all evidence to the contrary, you're saying that NDAs are unenforceable.

At the very least, I have to wonder if the weather is nice on whatever planet you're on. You sure aren't on Earth.

I guess we'll have to say that the conviction is summarily overturned.

No, you'll have to say that. And as usual, you'll be wrong. I tell you what, why don't you try it yourself and see if you're right?

As a lawyer you're far more familiar with self-delusion than I could ever dream to be.

So plus you're saying that lawyers are inherently delusional? Well, you don't know the first thing about the law (in fact, I'm impressed you can spell the word 'law'), but it hasn't stopped you from being delusional. Thus I find it difficult to believe there's a connection.

Re:Assigned rights

[SilverspurG]

So, all evidence to the contrary, you're saying that NDAs are unenforceable.

Only the ones which include unconstitutional clauses about intellectual property. An NDA which reserves all rights to the original author and inventor is Constitutionally enforceable and the government is legitimate to enforce it.

Are you consciously ignorant and argumentative, or did they teach you how to do this in lawyer training?

Re:Assigned rights

[cpt kangarooski]

You're contradicting yourself -- which is impressive in that both of your lines of argument are not just wrong, but asinine -- and I find it mildly humorous to point this out. You're not just hanging yourself, but you're furiously paying out rope to do it with too. It's hilarious.

Here you say that some NDAs are enforcable.

But before you said, directly in response to a point about NDAs: The Constitution does not recognize your right to sign away your right to free speech, or freedom of religion, or any other rights which citizens entail.

An NDA is a binding agreement to not disclose a particular subject, period. It has no real connection to copyrights or patents, etc. The subjects might overlap, but they just as easily might not.

The right involved in an NDA is, instead, free speech. You're agreeing in a contract to not speak on the covered subject, and you may need to pay damages and such if you do.

If you're agreeing that at least some NDAs are lawful under the Constitution, how can this be reconciled with your prior claim that the Constitution forbids them?

The answer is that your arguments are unadulterated crap, and that every time you post, you demonstrate further how stupid you are. And while I do derive a small amount of amusement from exposing this (not that it's hard work or anything) it really would be better if you just stopped your feeble attempts to argue with people.

Re:Assigned rights

[SilverspurG]

An NDA is a binding agreement to not disclose a particular subject, period

The government's authority to enforce that document ends when the document includes clauses which are outside the scope of its Constitutionally granted authority. Period.

In reality, you cannot certify that I own my neighbor's house. In practice (and current law) anyone can certify anything and it becomes a practice of suppressing the truth.

For example. Let's say that Bill Gates collaborated on a college project to write some code. 3 years later, after graduation, Bill Gates comes across a business deal to sell that code. His project group has all but disappeared into the mass of society. He can't contact them but wants to sell the code. So he simply removes any other names and sells the code. The company which buys the code certifies that Bill Gates is the sole owner of the code. Does that make it so? In practice, under your ignorant laws, yes, it does, because IBM and Bill Gates are the only ones who have the document and the money to enforce such an ignorant NDA. The other college collaborators probably never even know of the deal, probably never even know that their code was bought and sold and assigned to Bill.

Laws made in ignorance. That's what you're all about.

Read the Constitution and stick to it, tooth and nail. Anything else is little more than a cartel.

Show me the quote

[Reality Master 101]

The article said...

This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM s side of the case who don t think that example is one bit legal.

Show me one official instance where anyone has claimed that ripped CDs for personal use is not legal. I HATE when people on the other side exaggerate (and apparently flat-out lie) just to score points.

Re:Show me the quote

[Anonymous Coward]

DeCSS. Also, do you happen to recall what mp3.com was shut down for?

Michael

Re:Show me the quote

[node 3]

"Show me one official instance where anyone has claimed that ripped CDs for personal use is not legal. I HATE when people on the other side exaggerate (and apparently flat-out lie) just to score points."

Even worse are people who forget the past, and doom the rest of us to repeat it...

RIAA vs Diamond

It's hard to get more 'official' than a lawsuit, but why limit it only to 'official' instances? The RIAA originally promoted the view that mp3's were illegal. If you limit yourself to so-called 'official' incidents, you let them get by with implied assertions and innuendo. In this case, we've got 'official' statements, so it's not an issue, but in general, it's tying one of your hands behind your back while the other side is using both hands, their feet, their teeth, and are hitting you with your free hand...

"(and apparently flat-out lie)"

Awaiting your apology.

Re:Show me the quote

[iamnotanumber6]

That's a hell of a law!

First, manufacturers are required to implement (at the expense of the consumer) a copy-protection scheme that makes it impossible to copy music.

Then, consumers have to pay a tax on the equipment, plus $2/blank tape, which goes to the RIAA, to make up for lost royalties on copies of music - which is impossible to copy!

Sale is a contract

[tepples]

does that mean someone could actually have some sort of legal case against FACT, seeing as they are wrongly informing consumers of their legal rights?

Every sale of goods is a contract, in which goods are exchanged for money and/or other consideration. Such consideration can sometimes include waiving one or more rights against the other party unless the statute that recognizes such rights makes such a waiver null and void. Thus it could be argued in court that the "It is illegal to copy this DVD" language translates as "As part of your consideration in the sale contract, you waive any right to reproduce this work in copies."

Re:Sale is a contract

[Anonymous Coward]

IANAL, but don't all parties have to agree to the terms of contract? If the terms are not explicitly listed on the package (in big letters as the cigarette companies seem to be learning) then how can you agree to it?

Re:Sale is a contract

[Anonymous Coward]

For that to be true, wouldn't that restriction have to be presented and agreed upon BEFORE the sale was made?

Re:Sale is a contract

[Rude Turnip]

"Every sale of goods is a contract..."

At least in the US, the sale of goods is governed by the Uniform Commercial Code (UCC). When you buy something in a retail transaction, you've bought it, period. Moreover, you bought it from the retailer and not the publisher.

Re:Sale is a contract

[arkhan_jg]

However, that would only apply if those terms were available at time of purchase, and signed by the purchaser prior to handing over money to the retailer.

Adding additional restrictions after a sale is effectively prevented in the UK by the concept of 'doctrine of first sale' - specifically, the copyright holder cannot add additional restrictions than those granted by copyright, such as preventing resale, after the first sale is completed.

However, this isn't necessary in this case. Making a complete copy of a work you own is not allowed under fair dealing rights under UK copyright law, except for such transient copies or backups you need for installation or operation, or for reverse engineering. Ripping a DVD (or CD) you own to your hardrive does not technically fall under the stated exemptions, though it would likely be judged legal from precedent if it ever came before a court.

Re:Sale is a contract

[Anonymous Coward]

Deliberate holes were poked in the doctrine of first sale for things which contain or consist of recorded music, which therefore means both CDs and movies (the soundtrack).

The ordinary right to lend and borrow something doesn't apply to this hole. So if you buy a rubber duck, a novel by Vernor Vinge, an electric lawnmower, a steamroller, a DVD player and the latest Kylie Minogue CD single... you can charge people £5 per day to hire any of the above, except the Kylie single, where you need special permission from Kylie's rights holders.

Crazy, huh, but that's how they got the law written. Yes, even though for years people had been lending out books (which are copyright protected just like CDs or DVDs) they persuaded the government that they needed an exception to "protect their rights".

British public libraries negotiated a deal where they wait until the initial sales are over (it might be 90 days, I don't remember exactly) and then buy ordinary media and lend it out. Companies like Blockbuster have to buy special "licensed" copies which at first were identical to what you'd buy in the shops, but increasingly they're slimmed down (the extra features vanish) and have forced adverts which can't be skipped. Unlike your $20 DVD, the "rental" version may cost $100-200.

Subconsciously copying the underlying song

[tepples]

Without copyright law, people would have no incentive at all to write music since anyone could play it without paying them.

With copyright law, people would still have no incentive at all to write music since anyone can sue a songwriter, alleging that the musical works are excessively similar, and few people can afford to finance a legal defense.

Re:Subconsciously copying the underlying song

[Anonymous Coward]

You're right. No one makes, let alone sells, music under copyright law.

Some days the self-delusion at /. is fucking palpable. Is it coincidence it falls on the days an article related to common thievery is published?

Re:Subconsciously copying the underlying song

[Anonymous Coward]

anyone can sue a songwriter, alleging that the musical works are excessively similar,

"His music uses the same notes as my music. granted they are in a different order, BUT THEY'RE THE SAME NOTES!!"

Mod parent and daughter posts up

[Anonymous Coward]

? why did someone go through this thread and mod everything down ...
The only problem with the slashdot mod system is trolls get mod points , and then they try to silence discusion by pushin issues

What fair use is meant for.

[Patrick Mannion]

Fair use is meant for schools and stuff related to education somewhat. It's mentioned in one of our schools textbook.

According to Wikipedia:

Fair use makes copyrighted work available to the public as raw material without the need for permission or clearance, so long as such free usage serves the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8), better than the legal enforcement of claims of infringement.

http://en.wikipedia.org/wiki/Fair_use

Increases mindshare

[kn0tw0rk]

I think that the term you might be after for your point 6a is mindshare.

From Webster's New Millennium? Dictionary of English, Preview Edition (v 0.9.5)
Copyright © 2003, 2004 Lexico Publishing Group, LLC (just covering my legal arse :)

Main Entry: mindshare2
Part of Speech: noun
Definition: the development of consumer awareness about a specific product or brand in hopes that they will buy the product or brand

Re:Increases mindshare

[hhawk]

Yes :) and then of course leads to increases in sales, concert attendance, etc.

Sonny Bono Copyright Term Extension Act

[tepples]

The media industry is the only industry which doesn't have generic products or any significant competetition.

Not exactly. Americans can buy generic Beethoven CDs or generic kids' music CDs because musical works published pre-1923 are not subject to U.S. copyright.

Guess why? Even the medical industry, with its tens of thousands of patents, has generics and hot competition.

Pharm has vibrant competition because patents expire well within a human lifetime. Copyrights, on the other hand, do not.

Re:Sonny Bono Copyright Term Extension Act

[Anonymous Coward]

Americans can buy generic Beethoven CDs or generic kids' music CDs because musical works published pre-1923 are not subject to U.S. copyright

All of my classical CDs still cost around $8, and they were on the discount rack with the jewel cases cut. I bet dollars to donuts that, if it really came to throwing knives over it and some distributor wanted to target somone distributing tunes which they ripped from a classical CD, the distributor would claim a copyright on that particular pressing of that particular CD.

Re:Sonny Bono Copyright Term Extension Act

[Stonehand]

Individual performances are still copyrighted, IIRC, regardless of when the sheet music was written.

Re:Sonny Bono Copyright Term Extension Act

[Artifakt]

Copyright should expire within a human lifetime to bring the law in line with both the Constitution and physical fact.
Originally, people had a natural right to copy. In the Constitution, part of that natural right gets tranferred back to the originator of the work to encourage the artist to make works. It's somewhat like saying a person has a natural right to swing their arms, but part of that right is taken away, when someone's nose would lie at the end of the swing.
When you die, the natural right to copy stops. No one ever made a copy even one second after they died. So where can copyright lasting longer than a human life come from? If the extra isn't transferred from the people, it must be manufactured by the goverment out of nothing, or taken from some other source. While its possible the courts could decide there was a transfer from some other source, like stacking comeing generations rights on top of ours, the court hasn't proposed such a theory, so for now, 'made from nothing' is still something the government can claim as it sees fit.
Great - the same government that gave life plus 70 copyright therefore has the right to take that right away without it counting as unlawful siezure, they don't have to pay for it, and the results don't have to revert to the people, but could now revert to the government instead. Hey all you artists who think life +70 is a great thing, did you realize that the government now has an incentive to take it away and can keep it for themselves? How many generations do you think your life+70 will actually stay in your hands?

Re:Sonny Bono Copyright Term Extension Act

[Pofy]

>Not exactly. Americans can buy generic Beethoven
>CDs or generic kids' music CDs because musical
>works published pre-1923 are not subject to U.S.
>copyright.

I doubt there is any recordings from before 1923 sold on CDs today, so that is irellevant. Although the music itself no longer has copyright, meaning anyone can play, record and sell it, each such recording or performance is itself protected by copyright (not sure about the time in US; in Europe it is typically 50 years).

Re:Sonny Bono Copyright Term Extension Act

[tepples]

Although the music itself no longer has copyright, meaning anyone can play, record and sell it

This is exactly what I meant. There's a market in semi-generic cover versions because of the lack of copyright in the musical work.

each such recording or performance is itself protected by copyright (not sure about the time in US; in Europe it is typically 50 years).

In USA, the copyright in a sound recording is 95 years plus subsequent legislative extensions just like any other work made for hire.

Re:Sonny Bono Copyright Term Extension Act

[SilverspurG]

95 years plus subsequent legislative extensions just like any other work made for hire

How I wish I were still making royalties on the gymnasium wood floors that I laid down when I was younger. :)

Re:Sonny Bono Copyright Term Extension Act

[Dun Malg]

95 years plus subsequent legislative extensions just like any other work made for hire

How I wish I were still making royalties on the gymnasium wood floors that I laid down when I was younger. :)

Heh. Forget that, I want royalties on the meals my grandfather prepared as a master chef fifty years ago!

If this could be done 100 years ago...

[Husgaard]

This reminds me of what I think was the best April 1st joke this year, claiming that a 100 years old supreme court decision said:

Therefore, in the matter of defendant Thomas Alva Edison versus respondent the Book Authors Guild and respondent the Sheet Music Publishers Association, this court unanimously concurs with the lower court's decree. In inventing and offering for sale his "moving picture" and "phonograph" devices, the defendant induced countless infringing acts against the holders of copyrights for books and music. Defendant Edison's assets are to be seized in order to make restitution to the respondents. Furthermore, all phonographs, record players, moving picture equipment and similar devices are to be confiscated and destroyed. All "record" companies and "film studios" most disgorge their ill-gotten gains and henceforth cease and desist all operations now and forevermore.

One side of this court case does IMHO not know what they are doing.

The recording industry tried the courts to stop radio airplay of recordings. Now radio is both a revenue source and a major free (except for payola) advertising channel.

The movie industry tried the courts to make the video recorder illegal. Now video rentals and sales are one of their largest revenue streams.

And now they try the courts to make new technology illegal - again. I bet that p2p will end up generating more revenue for these companies. (In France and several other european countries they already are generating revenue from p2p.)

Don't these companies want to earn money?

Re:If this could be done 100 years ago...

[Anonymous Coward]

It's even better: The film studios - those pirates - moved to Hollywood to avoid paying license fees to Edison for his patents!

(Although some frenchman made similar inventions...)

C.f. Lessigs book "Free Culture" for more reference....

Re:If this could be done 100 years ago...

[SteveAstro]

In fact Edison fought tooth and nail to stop any competition with anything he claimed to have invented, from the lightbulb to "moving pictures". I bet Edison is BEHIND some of the weirder pratcies of modern patent law.

Steve

Re:If this could be done 100 years ago...

[Kjella]

The recording industry tried the courts to stop radio airplay of recordings. Now radio is both a revenue source and a major free (except for payola) advertising channel.

The movie industry tried the courts to make the video recorder illegal. Now video rentals and sales are one of their largest revenue streams.

And now they try the courts to make new technology illegal - again. I bet that p2p will end up generating more revenue for these companies.

I'm sure they don't mind using P2P to negate their own production and distribution costs. The big difference between your examples and p2p is control. Their greatest strength is controlling the marketplace. Try to get serious airtime or shelfspace at Blockbuster as an independant content creator. They don't want to embrace p2p until it is no longer p2p - it is just another centralized system with costs distributed to peers.

Kjella

Re:But they weren't going after rippers to begin w

[DavidTC]

However, it allows anyone arguing against the DMCA to say that a movie company itself has admitted that ripping things to a computer is covered under Fair Use.

Granted, you could have proven that it was Fair Use anyway, but the point is, you don't have to....MGM just admitted it.

Whereas, if they'd sued a distributor of CSS breaking software before, they could have argued that ripping things to your computer isn't Fair Use.

Mr. Show says

[heinousjay]

I wish to help you. Please understand that, despite the shady dealings, bribery, and other such underhanded bullshit, court cases are not decided on the basis of "Abbott and Costello"esque routines.

Decisions are based on a series of blowjobs.

321 studios should sue

[bravo369]

they were put out of business by the movie industry and now they concede it's perfectly fine to make copies. With that revelation, 321 studios should be allowed to sell dvdxcopy again.

Re:editors ...

[Saeed al-Sahaf]

Well, it is Timmy Boi doing the "editing" today! Go figure!

I'll tell you what's going to happen...

[Anonymous Coward]

if for whatever miracle the DMCA is rendered nonfunctional, congresscritters will be waken up at 3AM on a Saturday night to pass a legislation exactly like it, just with the commas in different places.

Comparison to DVD...

[doormat]

I like the last question in the article. Basically it poses the question that since MGM admitted its legal, vis a vis fair use, to rip CDs to put on an iPod, shouldn't fair use cover ripping DVDs to another device (like a PSP, or some portable media jukebox).

The answer involves the DMCA and encryption and how the DMCA is worded to excerpt fair use, even though you broke the encryption. I'm quite interested to see what legal geeks say about this (since IANAL).

Re:Comparison to DVD...

[Alsee]

DMCA is worded to excerpt fair use

No it isn't. It may look that way, and I suspect it was a deliberate deception to make it look that way, but it isn't.

The DMCA says that fair use defenses to copyright infringment are not affected. However a DMCA anticircumvention violation is illegal even if you are not commiting infringment. There is no fair use defense to a DMCA violation, therefore saying that a nonexistant fair use defenses is "not affected" is at best worthless and at worst a deception.

-

Re:Comparison to DVD...

[Vo0k]

Actually, there's a neat hole in DMCA. It says the -solemn- purpose of your work must be to circumvent protection. Integrate mini-tetris in your crack program making it dual-function, "play or crack", or make it perform any other useful (even if completely unrelated) task besides cracking and you are DMCA-safe.
With hardware cracks it's a bit harder. Say, an x-box mod chip should be usable (and marketed!) e.g. as transceiver, line buffer, power stabilizer, noise filter or any other "generic function" chip as well as the "mod chip", so you could use it not -only- for circumvention...

Re:Comparison to DVD...

[Alsee]

Chuckle, the people who wrote the DMCA were jackasses, but they were not stupid.

The act of circumventing is illegal, and any technology, product, service, device, component is illegal if it falls under *any* of the following clauses:

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

Wrapping DeCSS together with Tetris will not get you past (A) because your purpose was still to sell a circumvention product and it certainly doesn't get you past (C) knowledge for use in circumventing.

-

Re:But they weren't going after rippers to begin w

[matthewcharlesgoeden]

They haven't gone after the rippers and ipodders because of the Diamond Rio case (Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 [9th Cir. 1999]). The specific facts elude me, but the main gist is that ripping for the purpose of playing the music on a computer or using the music on an mp3 player was found to fit within the purpose of the AHRA (Audio Home Recording Act).

So, this is probably the primary reason they people haven't gotten drilled.

MOD -1 Hypocritical

[koko775]

And thus there would be no legal recourse if someone, in turn, copied their ideas, interface, etc. Without copyright, software would be free to redistribute (anything that tried to stop this would inevitably be cracked). How would a company sell something that everyone had the right to distribute freely? No copyright would free software -- as in beer. Freeing software in the other sense would be likely to *gain* from lack of copyright, not to mention it would just motivate companies to sell related services. It would virtually destroy proprietary protocols, unless they were designed with extremely high security and limited distribution in the first place.

Re:editors ...

[dhakbar]

Come on, you could at least make sure that your own criticism is using commas correctly.

Reality

[Anonymous Coward]

If MGM could really do what it wanted, we would pay each time we listened to a song. Or whistled a tune. Or quoted a movie. They have to lead things in this direction for the sake of their profits.

If we could do what we wanted, we would have all our music and movies for free. That's human nature.

Fortunately, we have laws and markets that bring the two sides to a compromise. Well, we have laws....for now.

Monopolistic competition

[tepples]

All of my classical CDs still cost around $8, and they were on the discount rack with the jewel cases cut.

Each individual recording of a public domain musical work is copyrighted. Thus there is monopolistic competition on which label can produce the best or most economical recording of a given composition, but the products are close substitutes because they're all performances of the same composition.

The Cold War

[tepples]

<sarcasm>You're right. No one makes, let alone sells, music under copyright law.</sarcasm>

The conspiracy theory here is that the music publishing industry is a cartel, and those inside the cartel have agreed not to sue one another in most cases, but those outside the cartel are vulnerable.

Privacy in the constitution

[nurb432]

No it wasnt expressly stated in the constution, however by using documents of the founders from the time of the writing, it is easy to understand that part of the intent of the 4th was to insure privacy.

Terms on the packaging

[tepples]

that would only apply if those terms were available at time of purchase

I have in fact seen such warnings on the packaging of DVD videos in the United States. Any terms printed clearly on the packaging would be deemed "available at time of purchase", no?

and signed by the purchaser prior to handing over money to the retailer.

Is a signature the only way to satisfy the "acceptance" requirement of a contract? Besides, don't credit card purchases need a signature?

Re:Terms on the packaging

[SilverspurG]

Besides, don't credit card purchases need a signature?

In the cases where a signature can't be obtained in a credit card purchase the concession has been allowed to use those extra numbers printed on the back of the card. It's not foolproof but it shows that the matter has been considered. There is no such consideration in the situation of the sale of a CDs and DVDs.

As for the warning printed on the packaging: that warning, should a case be tried on the merits of it alone, is probably unenforceable. The warning makes little or no mention of what rights the consumer is purchasing and so, if the warning itself is the binding terms, one could say that the consumer has no rights at all to fair use. That sort of situation would probably create more legal quandries than even the *AA would ever want to wade through.

Re:Terms on the packaging

[arminw]

...credit card purchases need a signature...

The signature on a credit card only binds you to pay the debt you have incurred. It has no other contracting or agreement function. An "agreement is always between at least two parties which must be unambigously identified and be of legal age.

MGM OKs Ripping [Re:Thank you, MGM]

[chronicon]

Once the case is over MGM can always go back to claiming otherwise

No they can't, according to this article:

...if they actually win this case they ll be barred from challenging ripping in the future under the doctrine of judicial estoppel.

This is a very important point. They cannot have it both ways--whether they like it or not. They have let the proverbial cat out of the bag.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[ePhil_One]

FYI Judicial Estoppel precludes a party from asserting a position in a legal proceeding that is contrary to a position taken by him or her in a prior legal proceeding.

Still, This isn't why they are trying to implement copy protection and it won't affect their attempts to create an uncopyable media. If they can stop you from ripping to MP3, they can keep the song/movie/whatever off the P2P networks. The fact that its impossible to make it uncopyable without making it unlistenable won't stop them from trying.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[Anonymous Coward]

Not very useful, since at most it would keep MGM from asserting the proposition. Doesn't stop the rest of the RIAAs from denying the existence of fair use.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[chronicon]

The fact that its impossible to make it uncopyable without making it unlistenable won't stop them from trying.

True, they will never stop trying to control content by stifling technology and/or DRM. The more important issue right now is that this case will set precedent for the issue at hand: whether companies can be held liable for consumers using their products for illegal purposes--MGMs concession indicates that (as in the iPod) with regards to the technologies in question "...there were many perfectly lawful uses for it..."

MGM s iPod example did exactly what their proposed standard expressly doesn t do: it evaluated the legality of the invention based on the knowledge available to the inventor at the time, not from a post hoc perspective that asks how the invention is subsequently marketed or what business models later grow up around it.

With this contradictory position, I think it will make it much more difficult for MGM to make their case against Grokster--how can a company be held liable for a consumer using their product for illegal purposes. That blanket would smother virtually everyone. I mean, what product can't be turned and used in (illegal) ways that the manufacturer never dreamed of or intended?

If MGM were to win, it would crush innovation on all fronts. Any inventor/manufacturer/distributor could be sued.

For a hypothetical, how about a civil suit brought against a company by an individual following an assault: "Some guy whacked me over the head with a flashlight, I am going to sue Magnum-Flashlight Co. for all they're worth..."

MGM v. Grokster is reminiscent of the anti-gun lobby trying to put the put the onus on the gun manufacturers for crimes that people commit with their products.

So, even if one supposes that this contradiction would apply only to MGM, if it breaks their case it will set precedent in favor of technological advancement, and not media mogul control of culture.

INAL

Re:MGM OKs Ripping [Re:Thank you, MGM]

[SlowMovingTarget]

Your point is good, but could've been a bit stronger. Your gun analogy left a bad taste in my mouth, you see. Most firearms, handguns and so-called "assault weapons" are designed specifically to kill or wound people. They aren't for hunting, they are weapons designed for use against other people.

To my knowledge, you can't kill anyone by sharing a file (uploading viruses to power plants notwithstanding). P2P file sharing technology was not designed to steal copyrighted media, it was designed to protect knowledge from extinction.

Gun manufacturers are not responsible for the bad acts of someone using a gun, in spite of the fact of the gun's design. A far better analogy, however, is one of an auto manufacturer. Automobile accidents kill thousands each year, yet common sense tells us that their usefulness far outweighs this risk. And no, auto manufacturers are not responsible when people use automobiles to commit crimes. We may soon find that protected dissemination of information will become as important and life-changing to some peoples on this Earth as the automobile has been to industrial society.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[l0b0]

The fact that its impossible to make it uncopyable without making it unlistenable won't stop them from trying.

They're already doing this. Haven't you seen the latest MTV Top 20?

Re:MGM OKs Ripping [Re:Thank you, MGM]

[Sique]

Why? Are they all so bad you call them unlistenable?

Re:MGM OKs Ripping [Re:Thank you, MGM]

[1u3hr]

This is a very important point. They cannot have it both ways--whether they like it or not.

However, "they" are just MGM. Any other copyright groups would not be bound by this, where they would be if the court had ruled on it.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[Tassach]

Most firearms, handguns and so-called "assault weapons" are designed specifically to kill or wound people. They aren't for hunting, they are weapons designed for use against other people.

Yep. And your point is?

To put it bluntly, there are times when it necessary and justifiable to use deadly force against other people -- for instance, to stop them from harming you or someone you care about.

If we were living some fairy tale liberal utopia where everyone respected everyone else's rights, it might be a different story. Unfortunately, in the real world, there are violent sociopathic individuals who wouldn't think twice about killing or raping someone just for the thrill of it.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[SilverspurG]

in the real world, there are violent sociopathic individuals who wouldn't think twice

They typically get voted into office because their sociopathic enough to come up with the best campaign propaganda.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[Anonymous Coward]

I mean, what product can't be turned and used in (illegal) ways that the manufacturer never dreamed of or intended?

How very true. An old girlfriend of mine had a t-shirt that said "any tool is a weapon if you hold it right".

I think you've hit the nail on the head.

Re:MGM OKs Ripping [Re:Thank you, MGM]

[SlowMovingTarget]

My point is that in many cases, the intended use of such weapons may be classified as criminal. This is not the case with P2P software, and so the analogy loses much of its intended force.

FWIW, I neither made, nor intended to imply, a judgement for or against gun posession. It wouldn't be (and isn't) my personal choice to own one, and it is none of my business if you choose otherwise.

Regards,

Michael

Re:MGM OKs Ripping [Re:Thank you, MGM]

[emtechs]

The fact that its impossible to make it uncopyable without making it unlistenable won't stop them from trying.

They're already doing this. Haven't you seen the latest MTV Top 20?

On the contrary - thats making it unlistenable without being uncopyable.
(at least if you have a betamax)

The Constitution was meant to protect the rich

[Cryofan]

or, in the words of the Father of the Constitution, James Madison, to "protect the opulent minority from the majority."

Most Americans at the time of the Revolution were firmly AGAINST the Constitution, but the rich bastards like Jefferson, Washington and Madison pushed it through secretly (the final details were not even widely publicized for decades afterwards).

The Founding Fathers were slaveowners, slave rapers, beaters of white servants (most of the house servants were much more white than black (e.g., Sally hemmings, Jefferson's slave, who was 7/8ths white)), and if they could hear all these modern day idiots prattling on about how the Constitution was written to how noble the constitution was supposed to be.

THe constitution was written to make sure that the rich could continue to do as they pleased, and that the poor could not do a damn thing about it.

Re:The Constitution was meant to protect the rich

[SilverspurG]

The Founding Fathers were slaveowners, slave rapers, beaters of white servants

Right... because it's always a good idea to have a house and land full of people who are so degraded that they're plotting to knife you in the back and don't care if they get drawn and quartered afterwards.

Haven't we picked you up as an antipatriotic malcontent terrorist yet?

Re:The Constitution was meant to protect the rich

[cgenman]

Haven't we picked you up as an antipatriotic malcontent terrorist yet?

Already done. He wrote that from prison on his PSP.

Re:The Constitution was meant to protect the rich

[RasputinAXP]

And just how long have you been out of Guantanamo?

Re:The Constitution was meant to protect the rich

[Anonymous Coward]

He's just DeLay's cousin.

Re:The Constitution was meant to protect the rich

[satans_advocate]

>> The Founding Fathers were slaveowners,

Right... because it's always a good idea to have a house and land full of people who are so degraded that they're plotting to knife you in the back and don't care if they get drawn and quartered afterwards.



Is it your contention that the founding fathers were not slave owners?

Re:The Constitution was meant to protect the rich

[SilverspurG]

Is it your contention that the founding fathers were not slave owners?

It's my contention that a slave of Thomas Jefferson or George Washington had more pride, human dignity, and a more pleasant lifestyle than any of our modern day McDonald's indentured servants.

Re:The Constitution was meant to protect the rich

[hesiod]

> It's my contention that a slave of Thomas Jefferson or George Washington had more pride, human dignity, and a more pleasant lifestyle than any of our modern day McDonald's indentured servants.

You've got a seriously fucked view of the world. They were slaves. They were beaten. They were forced to work in fields in the hot sun. Those lazy fuckers at McDonalds have air conditioning and still complain about "slave wages!" Slaves had NOOOO wages, much less five bucks an hour.

At least the slaves had a free place to sleep... It was infested with disease and flea carrying rodents, but sleeping on your stomach on a dirt floor (because your back has open wounds from a flogging) sure brings about that "dignity" you so easily place on them.

Re:The Constitution was meant to protect the rich

[SilverspurG]

They were beaten

Proof? And, to counter, employees of McDonald's can be fired. Personally, I'd rather take a one-time beating than try to tell my landlord,"Sorry, you'll have to evict me because I can't pay you this month." Everyone takes a beating once in a while. If you've never had one, then you're probably a spoiled yuppie brat.

They were forced to work in fields in the hot sun.

Quit whining. Do you think crops grow themselves? Who do you think tends the fields for the vegetables you serve at dinner?

It was infested with disease and flea carrying rodents

Proof? Additionally, I doubt this was as terrible as you make it out to be. Again, it's not a good idea to have people living in your house and land who are so degraded they're willing to knife you in the back. Everyone sleeps sometimes.

Re:The Constitution was meant to protect the rich

[hesiod]

> Do you think crops grow themselves? Who do you think tends the fields for the vegetables you serve at dinner?

Paid laborers. Which is 100% different from slave laborers.

Re:The Constitution was meant to protect the rich

[Asterisk]

FYI, Jefferson had nothing to do with the creation of the constitution. He was in France during the constitutional convention, and when he returned, did not fully support the constitution until the Bill of Rights was adopted.

Re:The Constitution was meant to protect the rich

[Cryofan]

he wrote the Declaration of Independence, which has been used as part of court cases, which is common law, which means it is defacto part of our LAW.

Look, Shitferbrains, don't bother taking on someone who has read more books than you will ever even come within touching distance of....

Re:The Constitution was meant to protect the rich

[satans_advocate]

It's my contention that a slave of Thomas Jefferson or George Washington had more pride, human dignity, and a more pleasant lifestyle than any of our modern day McDonald's indentured servants.

That's an interesting contention. In considering whether that is true, I would have to ask the following questions.

Were Thomas Jefferson's slaves literate?

Were Thomas Jefferson's slaves free to move to California?

Were Thomas Jefferson's slaves free to purchase alcohol?

Were Thomas Jefferson's slaves free to choose another back-breaking unrewarding career instead of cotton picking?

Were Thomas Jefferson's slaves' rights protected under the constition?

To the best of my knowledge, the answer to all of the above questions are 'No', which lead's to the conclusion that today's indentured servants still have 10 times the unrealised opportunity that Thomas Jefferson's slaves did.

That there are social, economic and political forces working against today's indentured servants to prevent them from realising those opportunities does not detract from their availability. Which is different from a system of serfdom or slavery.

And back to the context that started this thread. The framers of the constitution used the expression 'free men', to describe the rights they were framing. That is, not slaves.

Re:The Constitution was meant to protect the rich

[Anonymous Coward]

Look Cryofan, you made a claim that a group of people, including Jefferson, were behind the consitution. The declaration of independence is not the constitution. You were proven wrong - face it and apologize to the guy.

Here's what it is.

[Anonymous Coward]

> Is this a return to the stripped down 'fair use' rights or a temporary court concession?

It's neither.

It's a "we're getting our asses handed to us on a platter because we've been arguing a logically incoherent position that mercilessly rapes the public interest, so we'd better start saying something quick that makes us look like we're somewhat in touch with reality" tactic.

Oral Argument

[ari_j]

Did they concede this during oral argument two weeks ago, or is this just them blowing smoke now that there's nothing anyone can do about it until the Supreme Court hands down its opinion?

Re:But they weren't going after rippers to begin w

[cpt kangarooski]

No, the case held that it was not within the bounds of the AHRA. This is important, since if computers and mp3 players did fall within it, a) they'd have to implement DRM, and b) money would be owed to the record industry.

The court said in dicta in that case, however, that space shifting was probably a fair use.

Re:My take on this...

[norsk_hedensk]

pardon my french, but in all honesty FUCK every large corporation. all they are after is our money (duh) so why should we feel ANY sympathy towards them? they dont care if we live, die, are happy or sad. if it makes us happy to coppy cds and hand them out to (or sell!) our friends then SO BE IT!

i will never feel bad for buying a cd, then doing whatever the hell i please with it. this goes for DVDs, software, anything that i BUY with my own money, and i will never feel like a theif for doing so.

think about this, pharmeceutical companies are a business. they dont CARE about curing people, they care about you buying their drugs.

you think if they had a cure for cancer, or, how about a not-so-sensitive condition, herpes.

you think if they had a cure for herpes they would be quick to sell it?

"here, take THIS medication once and never have to buy it from us again, or take THIS medication for the rest of your life, paying us all the while..."

screw them.

WDBGT?

[Nom du Keyboard]

As we all know, there are legitimate uses for P2P software (think BitTorrent and distributing Linux ISOs

WDBGT = What Does Bill Gates Think?

In this example, he probably doesn't think it's legitimate at all.

The third also.

[Ungrounded Lightning]

[...] it is easy to understand that part of the intent of the 4th was to insure privacy.

It may not be quite as easy to see, but the third amendment is also about both privacy, not just a form of taxation.

Part of the reason for quartering troops with the locals is so the troops can act as spys, observing, for the government, the activity of each family and its neighbors, and reporting anything suspicious to the officers of the army.

It's an old tradition, and one of the things that the founders wanted to end.

For the last time, you are wrong.

[Rumor]

For the last time, you are wrong.

The right to copy belongs solely to the copyright holder. There is no caveat on that right except fair use. The right to make one copy, for you, for someone else, for throwing in the garbage, for anything, is a right solely vested in the copyright holder.

There is no law against distribution. If there were, there would be no First Sale doctrine, because only the copyright holder would be able to sell or give away a copyrighted work. Anyone who possesses a copyrighted work can sell it or give it away (in general). If copyright was distroright, then you would never be able to sell your books or your cds to anyone, or even give them away. But that would be stupid. You simply cannot make a duplicate of a copyrighted work, for any purpose.

Unless it falls under fair use.

Re:For the last time, you are wrong.

[Anonymous Coward]

Err, there's a *specific* (if little-used) caveat that copies made during the use of the work are not considered infringing for one.

For another, I'd say the fact that copyright EXPIRES is another sort of caveat (assuming congress ever *lets* things expire any more).

Don't oversimplify too much.

Re:For the last time, you are wrong.

[Pofy]

>There is no law against distribution. If there
>were, there would be no First Sale doctrine,
>because only the copyright holder would be able
>to sell or give away a copyrighted work.

Yes, copyright law include distribution as an exclusive right to the copyright holder. However, that right is specific to each copy of the work and is lost of the initial distribution. This principle is what goes under the First Sale principle in US I believe. Other countries have similar concept. Hence, once the copyright holder has sold (or in other ways distributed) a copy for the first time, he no longer can control THAT copies distribution and the current owner can resell, give away or whatever he likes.

This applies to all new copies made. Hence, if you, through fair use for example, can make a legal copy, you still can't distribute it since the right to distribute is with the copyright holder initially.

Re:For the last time, you are wrong.

[cpt kangarooski]

You're thinking of the sum of 106(3) and 109. Really, there are a number of limits to the first sale doctrine in 109 (e.g. it prevents you from renting music CDs, but permits you to rent videos). Also, by its own language, it only applies to lawfully made copies. If you lawfully make a copy per fair use then, 109 is applicable and you can resell it without infringing on the distribution right.

This is why you virtually always see infringement of the distribution right in connection with infringement of the reproduction right.

Re:For the last time, you are wrong.

[Pofy]

Actually, I was not thinking of any specific paragraph in US copyright law since I am not american and not familiar with it in such detail. I was speaking more in general only.

However, your reply and reading the relevant sections more carefully, makes me wonder about the specific case of US copyright. If we stick to lawfully made copies, is there really ANY time someone other than the copyright holder can NOT sell a copy? I can see that you can't distribute it in some ways like renting, but lets stick to simple selling and giving away. IN what circumstances for a lawfully made copy does the copyright holder have the exclusive right to it?

If I go to for example swedish copyright law, the case is, as I explained that the copyright holder has the right to the first distribution (regardless of who made the copy), but after that, any one can redistribute that specific copy. But you seem to sugest that a (lawful) copy someone else make, the copyright holder never has distribution rights to (still talking only about sale and giving away). Is that correct? So why give it to the copyright holder as an exclusive right and then make it never apply? Or did I miss anything you said?

Re:For the last time, you are wrong.

[cpt kangarooski]

Actually, I was not thinking of any specific paragraph in US copyright law since I am not american and not familiar with it in such detail. I was speaking more in general only.

Fair enough.

If we stick to lawfully made copies, is there really ANY time someone other than the copyright holder can NOT sell a copy?

The seller needs to be the owner (or authorized by the owner) of the copy. So the pernicious practice of EULAs can interfere with this.

And 'lawfully made' refers only to copies lawfully made by the United States copyright holder, as distinguished from the holders of foreign copyrights on the same work. This plays into why importation of copies is often an infringement of the distribution right, and why there has to be a section setting up some very narrow exceptions (narrower than people think, as the section is often misread) under which copies may be imported by persons other than the US copyright holder.

But you seem to sugest that a (lawful) copy someone else make, the copyright holder never has distribution rights to (still talking only about sale and giving away). Is that correct?

Yes.

So why give it to the copyright holder as an exclusive right and then make it never apply?

It applies. For example, let's say we have two people, A, and B, and a copyright holder C.

A makes copies of C's work unlawfully. Clearly he has infringed C's reproduction right. But if he gives copies to B, and B starts selling them, B has not infringed C's reproduction right. The copies are already made. All B is doing is distributing unlawfully made copies, and so unless C can prevent such a thing independently, B will get away with it.

Note also that mental state is not really important in US copyright law. Even if B does not think he is infringing, and has no reason to think he is infringing, he can still break the law. Thus, C has remedies against B even if A and B are not working together.

Re:For the last time, you are wrong.

[SilverspurG]

and a copyright holder C.

The copyright holder C is not Constitutionally recognized and is an abomination. All laws which recognize the copyright holder C are unconstitutional and should be removed from the books. The State or Local governments are free to recognize copyright holder C (if permitted in their respective charters), but the Federal Government should say,"Case dismissed" whenever copyright holder C wants to whine.

Re:For the last time, you are wrong.

[Pofy]

First, lets disregard any contractual provisions (you meantionined EULA) since in such cases, anything goes of course.

However, I still don't see a sitation with a lawfully made copy (which rules out for example imported copies as you mentioned). Take your example, it deals with unlawfull copies. not lawfull ones.

It still looks to me that any lawfull made copy can be freely distributed with no permision needed, while unlawfull copies can not, right? And it is irellevant WHO made the copy, as long as it is lawfully made, right?

If that is the case, US copyright law in this aspect seem to differ from European ones (well, perhpas not all) were the copyright holder always get distribution rights for any copy made and loses it (on a per copy basis) after the first distribution only. In the case of Sweden, the new proposed copyright law actually limits it further so that the distribution right is only consumed if it was inside EU. That basically means, if I understand it, that if I buy a book in USA or Japan (for example) and take it home, I can't sell it or give it away, since the copyright holder has not yet distributed that copy (or permited it) inside EU. In my opinion this is horrible but hardly ever commented about the new proposed law (there are so many other bad parts it perhaps get forgotten).

Re:For the last time, you are wrong.

[cpt kangarooski]

It still looks to me that any lawfull made copy can be freely distributed with no permision needed, while unlawfull copies can not, right? And it is irellevant WHO made the copy, as long as it is lawfully made, right?

Yes.

That basically means, if I understand it, that if I buy a book in USA or Japan (for example) and take it home, I can't sell it or give it away, since the copyright holder has not yet distributed that copy (or permited it) inside EU.

There has been some litigation in the US, where a US copyright holder attempted to prevent the distribution in the US of copies it made for sale aborad. Due to 109, they lost, and the distribution was found noninfringing.

If that is the case, US copyright law in this aspect seem to differ from European ones (well, perhpas not all) were the copyright holder always get distribution rights for any copy made and loses it (on a per copy basis) after the first distribution only.

That's certainly interesting.

Fair Use

[Nom du Keyboard]

Fair Use should always cover translation to a new format when the old format cannot be used in that situation (e.g. ripping a CD to MP3 to play on a portable player that does not include CD capabilities).

I'm not saying it does -- although I hope the court will say so -- but it should. The copyright owner should have no ability to determine or limit how you view the work.

Hmm, if you think they strip you of rights then...

[Karaman]

Hmm, if you think they strip you of your rights then... ...dont buy their goods! Do you need that MGM film anyway. Why dont you spend the money on some new book, a girl or some great toy that will make your child think and not be an idiot! Fschk the media corporations!

Re:My take on this...

[SilverspurG]

"here, take THIS medication once and never have to buy it from us again, or take THIS medication for the rest of your life, paying us all the while..."

In some ways you're right and I agree with your sentiment.

However, in the case of medicine, it's not quite that simple. You can't just cure herpes or cancer. Here's why: Any disease is the presence of malfunctioning cells inside of an organism which, hopefully, is composed mostly of properly functioning cells. Nature has given us an immune system which, over many millions of years, has developed into a specialized system of cells which roam throughout the healthy system and attempt to identify cells which are malfunctioning or entities (such as viruses) which are alien to the body. If nature hasn't been able to figure out how to recognize exogenous from endogenous entities then how can a simple chemical compound change that?

One must address the problem. The problem is one of two possibilities: the immune system is malfunctioning or the exogenous entity has managed to mask itself. It's always a case by case basis. You may have persistent herpes because your T-cells lack the mechanism to properly recognize the herpes virus and other infected cells. Why are those T-cells incompetent? Well, there are hundreds of possible cellular inadequacies: malformed proteins, internal systems out of sync, inaccurate response to cytokine levels surrounding the functioning cells, to name a few. Your partner, on the other hand, may have herpes because their particular strain happens to express surface markers which are so close to endogenous cell surfaces that it's impossible to distinguish.

How is a pharmaceutical company supposed to know, seven years in advance (the timeline for even a quick development) which target to pursue? Even if they concentrated just on you, and fixing your immune system, your T-cell inadequacy may be a completely different situation from the someone else's immune system where, hypothetically, the T-cells are properly tagging infected cells but the NK cells are unable to overcome the proliferation rate of infected cells.

I could go on but I hope that you begin to see that pharmaceutical companies are being held to unrealistic standards and have a nearly impossible task attempting to develop a medicine for an infected population majority. Even if they manage to successfully diagnose a majority they'll get lambasted by the ignorant for not concentrating on a population minority.

They do what everyone else does. They throw up their hands in disgust and concentrate on the only thing which matters: make the most money in the least amount of time.

The only real travesty is that, given the government's support of obviously unconstitutional intellectual property law and employee agreements, the individual scientists actually working in the lab make a pittance to live on while the CEOs, executives, and primary stock investors (who know nothing of science or medicine), spew out ignorant media reports on the state of science and walk off with the lion's share (and then some) of any profits which are made.

Fair Use doesn't apply to private collections

[wombert]

http://www.copyright.gov/title17/92chap1.html#107

Read sections 107 and 108 -

"Fair Use" refers to reproducing works in part or in whole for comment, criticism, or scholarship. It doesn't work for your private DVD collection

Archival copies are permitted for public libraries or research archives. Again (and unfortunately), this doesn't apply to your private DVD collection.

Re:Fair Use doesn't apply to private collections

[argent]

That's kinda irrelevant... you're still allowed to make copies as a necessary part of using your own works in the usual way... which now includes ripping both audio CDs and DVDs.

Re:Fair Use doesn't apply to private collections

[wombert]

Says who?

Seriously, I've been looking for some clear statement that says I can make a copy of a movie I have on VHS or DVD. I can't find it. "Fair Use" as spelled out on the copyright website doesn't give me any such rights. Add to that the federal notices on these particular copies of the movies (on any commercially available movie today), and I have a hard time proving to myself that I'm allowed to make "backup" copies.

Note - the copyright site mentions exceptions for making backup copies of software, but explicitly states that this covers software media only (not DVDs or audio CDs).

So, while I think that I ought to be able to (for example) copy a VHS movie to DVD as a "backup" or as part of my normal use for a work that I've purchased, I can't figure out whether I'm legally permitted to do so.

Re:Fair Use doesn't apply to private collections

[wse7k]

I've been looking for some clear statement that says I can make a copy of a movie I have on VHS or DVD.
Thats because you should be looking for the one that says you cannot. Activities are legal by default, not the other way around.

Re:Fair Use doesn't apply to private collections

[argent]

I've been looking for some clear statement that says I can make a copy of a movie I have on VHS or DVD.

If you need to do it to use it in a normal way.

For example, to use it in applications like iTunes, which has definitely become "normal". Also, you're allowed to use clips in works you make with DVD editing applications (under fair use, say for purpose of criticism), therefore you're allowed to make digital copies of the movies as a necessary stage in such legal use.

There's no law that restricts what you can do with such a copy once you have made it.

WIth 160GB hard disks being cheap, I would be surprised if there were not DVD analogs of iTunes now, or that there will not be such tools available in the near future. Again, making a copy is a necessary part of using it in the normal way.

Also, to play a movie in a handheld device you need to make a copy of it. Sony (a large media owner) explicitly condones that given that they sell such a product themselves.

Re:Fair Use doesn't apply to private collections

[AeroIllini]

I've been looking for some clear statement that says I can make a copy of a movie I have on VHS or DVD. I can't find it. "Fair Use" as spelled out on the copyright website doesn't give me any such rights.

That's because it's not spelled out in Fair Use (which are merely a set of guidelines anyway). Check out Title 17, Section 1008 of the U.S. Code. Chapter 10 was added in the Audio Home Recording Act of 1992: the bill's purpose was to a). prohibit the creation of devices whose sole purpose was copyright infringement and provide copyright holders recourse when such a device was created; b). to spell out royalty payment measures for creators of devices that would otherwise infringe on copyrights; and c). assure non-commercial, private copying by citizens is not infringement.

Full text of the bill is here: http://thomas.loc.gov/cgi-bin/query/D?c102:1:./tem p/~c102BDnnHZ::

I especially like this bit in section 1008:

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.

17 USC Chapter 10 refers specifically to audio recording, of course, but since all the concepts of copyrighted works are the same for video recordings, I imagine that a court would find the parallel. Perhaps we as a community (meaning the Slashdotters who are U.S. citizens) could jump the gun, and petition a senator or two to propose a bill expanding the definitions of 17 USC Chapter 10 to include video recordings, copies of software, and even things like ebooks and reproductions of artwork. I'm sure a good person to start with would be Rep. Bill Thomas (CA-R), who introduced the original Audio Home Recording Act in 1991.

Re:But they weren't going after rippers to begin w

[matthewcharlesgoeden]

cpt_kangarooski -- You are right, but I am not wrong. I stated that ripping, etc. "was found to fit within the purpose of the AHRA (Audio Home Recording Act)[.]" I was referring to the space-shift section of the case (180 F.3d 1072, 1079) that you referenced where this quote is found "In fact, the Rio's operation is entirely consistent with the Act's main purpose -- the faciliation of personal use."

I did not say in my previous statement that those acts fell under the AHRA; I merely said that that fitted within the purpose of the AHRA.

The court did say this in dicta -- but this was my reasoning of the comment. The RIAA knows where the 9th cir. is going to stand if they try to sue "Joe iPodder."

Re:But they weren't going after rippers to begin w

[cpt kangarooski]

The Act's main purpose is to facilitate personal uses -- which are not coextensive with fair uses -- only where money is paid out and DRM is instituted.

Fair use permits any fair use, by anyone, for any purpose, without payment, and without DRM.

I think they're pretty different.

Also AHRA merely makes certain infringements nonactionable, which more restrictive than fair use, which makes certain otherwise infringing conduct non-infringing.

Well.....

[kf6auf]

It's like opening the freezer door to cool off Hell's kitchen. If there is no dispute over Fair Use Rights then there is no reason for the Court to specifically decide anything and the movie/music studios won't end up as bad as if the Court felt that it should clarify Fair Use Rights.

Re:But they weren't going after rippers to begin w

[Jeff DeMaagd]

After all, you can't argue that you have the right to share something legally until you have crossed the very basic step of establishing that you have the right to do something with it besides listen to it on the original medium.

I'd like to know how someone can reasonably think they have the legal right to "share" works they don't own over the Internet? The difference between personal use of a legitimately paid-for product and letting anyone and everyone have a copy is pretty large.

I think both the *AAs and the "sharing" communities are in the wrong, both are trying to claim powers that they shouldn't have. There are no rights to redistribution of user-made copies, and I don't think the *AAs should be permitted to have the laws they have managed to get passed.

Re:But they weren't going after rippers to begin w

[dalutong]

I don't know if people do have that right. I'm not a lawyer.

Is it legal for me to give you a mixtape or CD i made for a road trip? I don't know. But if it is, then isn't it legal for me to connect to you directly (peer 2 peer) and send you the CD image?

I think the fight for p2p isn't about being allowed to use illegally. It is about it not being an illegal technology because it can be used legally. Certainly distributing debian ISOs using BitTorrent is legal, for instance.

Extend copyright terms in exchange for source...

[rice_burners_suck]

I have an idea: Congress should step in and create new legislation that returns the time-restricted copyright and patent protections to their original length, retroactively.

Keep the part of the law that states that any work is immediately copyrighted by its creator, even if a notice is not present, but you only get so many years, and then, that's it. It goes into the public domain.

And here's something cool: Offer an additional "extra bonus" copyright protection term, say, ten years extra, for full release of "source"... If it's music, all notation, lyrics, recordings, and other matter used in production. If it's a movie, all the original film, etc. If it's software, the source code and building scripts. Whatever it is, it must be submitted to a government agency created for the purpose a year or so before the copyright expires, and that agency will make sure that all the required materials are there. If they are, the additional "extra bonus" time will be awarded, with the materials released to the public domain when that additional term expires.

You'll find a lot of software companies running up against the copyright limit for versions they released so many years ago, and they'll be desperate for the additional time. Say it's version 9 right now, but version 1 is nearing the copyright limit... Ten years from now, when it's version 12, the complete source code for version 1 will come out. May seem like a huge lag of so many years, but UNIX was created how many years ago? Ten years ago they were saying that BSD is dying. And what the heck am I using to type this up? A Mac. Running BSD. Some of the code running in this thing, I'd bet you, is at least 20 years old. Probably crap they wrote, perfected, and never touched again. How often do you look at the code for tail?

So, yes, you could get additional time in exchange for all the source, or simply let the release go into the public domain and keep the source secret.

Rectal Primates

[Barkmullz]

I am in pain...

There are monkeys flying out of my butt...

Re:But they weren't going after rippers to begin w

[Anonymous Coward]

They have attempted to 'protect' the discs so that ripping wasn't possible.

Which is well within their rights.

Ummmmm, no?

[fishmasta]

The copyright laws outline six basic rights:
1) The Right to Reproduce the Copyrighted Work in Either Copies or Product
2) The Right to Make Derivative Works Based on the Original Copyrighted Work
3) The Right to Distribute to the Public
4) The Right to Perform
5) The Right to Display Publicly
6) In the case of sound recordings, the Right to Perform the Work Publicly by Means of a Digital Audio Transmission

So clearly you're wrong. Copyright is just that. The right to make copies. You could copy a thousand CDs and never distribute one, but you'd still be in violation of the first right of the Copyright Law. Fair Use protects this now, but that's a more recent distinction.

Re:Extend copyright terms in exchange for source..

[earthbound kid]

Man, I was just about to release my new version of tail written in .NET with drag and drop support, 3D graphics acceleration, drop shadows, and a wicked transparent ripple effect, but after that crack, maybe I'll just keep it to myself instead. All I'm saying is, you haven't seen the end of a file until you've seen it using a high power severside web processing app with XML-SOAP support and client side XAML graphics.

Re:Extend copyright terms in exchange for source..

[rice_burners_suck]

I stand corrected. You have enlightened me of the errors of my ways. I will immediately delete the CLI and only use applications that require a Pentium 5, 128-bit processor, with 4 gigs of RAM, and at least 1280x1024 in 64-bit color, with hardware accelerated 3D graphics. Because you can't see a directory until you see a directory.

Send this to your non-tech friends and family

[michaelmalak]

In response to a casual user of the Internet who asked me what FTP is, I ranted off the response below. You can send it to your non-tech friends and family who may not be aware of what the Internet was meant for.

File Transfer Protocol -- the original "P2P" file sharing from the 1980's.

http://www.faqs.org/rfcs/rfc959.html

As the Internet was used mainly by the military and by universities back then, it was used to allow researchers to share published papers, research data, and software they had written.

That's why MGM v. Grokster is so bogus. P2P file sharing was one of the main purposes of the Internet (it wasn't to surf cnn.com).

http://www.pcworld.com/news/article/0,aid,120228,0 0.asp
http://www.eff.org/IP/P2P/MGM_v_Grokster

Which brings me to another pet peeve. I keep seeing news reports on various topics that say things like "Internet and e-mail access". What they really meant to say was "web and e-mail". HTTP is but one of many protocols that run on the Internet. "The Internet" is much bigger than just "the web".

To make that even more clear, prior to the web, when you signed up to the Internet, you would expect "e-mail and UseNet". Now you expect "e-mail and web and maybe UseNet if the ISP is a) nice and b) retro".

It just illustrates that Internet protocols come and go. FTP was a file sharing protocol. Grokster, Kazaa, etc. are just new file sharing protocols.

UseNet itself is actually also based on peer-to-peer technology. UseNet is the globally distributed message board system. groups.google.com archives UseNet posts, but they are just one of thousands of UseNet servers across the globe collaborating to provide the service. UseNet servers talk to each other as "peers" to synchronize their message postings.

The whole nature of the Internet was originally "peer-to-peer". But two things have come along to keep that concept out of the minds of most Internet users:

a) Web technology, which is more client-server than peer-to-peer. The popularity of the HTTP protocol has made it seem to most people that the web is the Internet, and thus most people think that to participate on the Internet means you are supposed to "log in" to some "official" computer (e.g. browsing to cnn.com)

b) Dynamic IP. The inventors of the Internet thought that 2 billion IP addresses was enough for the world. Well, we've run out, and so now when you get an Internet account you no longer get your own "static" IP address. Instead, you get a "dynamic" IP address. That makes it impossible to register a domain name (like underreported.com) to your own computer at home. Instead, you have to pay a "hosting provider" to use their computer running on their network that happens to be privileged enough to have static IP addresses. In the old days, everyone's computer handled their own e-mail, their own FTP server, etc. FTP is really only effective with static IP addresses. The rise in popularity of so-called "P2P file-sharing apps" is due in part that they were built to work with dynamic IP addresses (because they advertise themselves on a custom protocol as opposed to relying on the DNS (Domain Name System, where names like underreported.com are recorded along with their static IP addresses)).

Re:Ummmmm, no? Actuall you are also WRONG

[Anonymous Coward]

Sections 107-122 limit the scope and except certain activities. Section 117 after CONTU rewrote it for example, gives the owner of a copy of computer software to make as many copies as needed to utilize the software, to back-up the software, and to adapt the software to another platform.

In addition to the exceptions and limitatians listed in sections 107-122 section 1008 explicitly decriminalizes any copies of sound recordings if done by a consumer for non-comercial uses.

sectoin 1201 however makes it ilegal to bypass any access control mechanism - NOT just COPY CONTROL mechanism. So yes under the DMCA (Chapter 12 mostly) the copyright holders can prevent you from pretty much doing anything with your legally aquired media including playing, reading, privatly displaying. listening to, ect as all these activities require access to the work.

Re:But they weren't going after rippers to begin w

[Anonymous Coward]

It is a big deal. For one thing, the MGM attorney perjured himself. When asked "under this proposed standard, would the inventor of the iPod get sued?", he said the iPod was safe due to non-infringing uses like playing music ripped from CDs. However, if you consider Diamond Multimedia the "inventor of the mp3 player" - they were the first to sell one in the US - well, the RIAA *did* sue Diamond to try to stop the Rio mp3 player from being sold here. They also tried to sue Apple for their "Rip. Mix. Burn." ads, which were were clearly about fair use.

Re:But they weren't going after rippers to begin w

[TheoMurpse]

Is it legal for me to give you a mixtape or CD i made for a road trip?

No. And this isn't a personal attack on you, but people who don't know about copyright law should stop trying to be copyright lawyers. Mix tapes are copyright infringement, but rarely prosecuted because it is not worth the resources to do so.

Contracts, Plagerism don't rely on copyright.

[David Rolfe]

Exactly, the GP assumes (wrongly) that in your world without copyright that there are also no contracts!

Why would an author give his manuscript to a publisher without assurances?! That's right, she wouldn't. When an author comes to a publisher in the world without copyright they come to an agreement before the material changes hands. The publisher has more of a problem than the creator. The creator has a monopoly on her ideas until she distributes them. The publisher, by his very nature, is giving up his monopoly the moment he sells a copy. He needs to be able to run his business in such a way (as you described) where the novelty of the product and the quality of the product make profit. If the publisher makes profit, he is successful and will continue on, if he doesn't, he will fail and his business will be culled. Once his business folds, it's no problem, another publisher can duplicate the work if they are able to be profitable.

Interestingly, 'passing off an author's work as your own' is already against our moral code, it's called plagerism and our society doesn't accept it. When the GP suggests that a publisher will just take (not purchase?!) the words of an author and sell them as their own they are committing a social transgression -- if not State crime.

Speculation is not evidence.

[David Rolfe]

you: Art would not cease to exist. Whether or not you would get the same kind, quantity, or quality of art is a whole other question.

It's not a question at all, just like how many CDs the RIAA could or couldn't sell with or without Internet copyright infringement. That argument is totally fallacious.

Speculation is not evidence.

Re:Speculation is not evidence.

[GileadGreene]

Speculation is not evidence.

Yes. That's why it's a question, not a fact, or even a hypothesis, isn't it? I did not say "you will get xxx", or "you will not get xxx". I said "whether or not you get xxx is a separate question from the point that you are debating".

I don't have any answers to that question (although I am curious as to why people saw fit to create copyright in the first place, if it didn't increase the kind, quantity, or quality of art available - that might help answer the question).

Re:Speculation is not evidence.

[David Rolfe]

Asking an unknowable question as a rhetorical device could be considered as speculation. If the question was not rhetorical, I guess you 'win'. (If the question was rhetorical, then it's an assertion of the unknowable, i.e., conjecture, speculation. :-) I'm not trying to be a pedant or move this discussion to semantics.)

I don't have any answers to that question (although I am curious as to why people saw fit to create copyright in the first place, if it didn't increase the kind, quantity, or quality of art available - that might help answer the question).

The history of copyright is pretty well preserved. :-) You can read all about it; Iirc Lessig's free Free Culture covers this history in the first couple chapters. In the American tradition it (and the patent) was provided for [in the Constitution] to advance science and the arts by providing monopoly incentive.

(Not to insure the advance of science and the arts, but to promote it. This is to head off others' arguments about the fundemental creative genius of humanity. Humans were creative before monopoly incentive.)

Re:But they weren't going after rippers to begin w

[dalutong]

that's why i had the disclaimer, "I am not a lawyer" and was only throwing in some speculation as to what the logic of the argument might be. i am sorry i did not make my lack of authority clear enough.

On Slashdot...

[Anonymous Coward]

On Slashdot everyone's a lawyer. :-D :-)

Re:But they weren't going after rippers to begin w

[TheoMurpse]

But it's just like people on TV insinuating things when they don't want to come out and admit what they're saying isn't true; they hide behind a veil of "I don't know if this is necessarily true" when they say "is it???" and that is what's wrong with news today. I'm sorry if I seemed to lash out at you, but I saw too much similarity there.

Re:But they weren't going after rippers to begin w

[dalutong]

I also dislike it when people who don't have authority speak as if they do. I think, though, that there needs to be a great allowance for people who don't have authority to question those who do. that's why i asked my questions -- to get answers from people, like you, who have some authority (it seems)

pheuf...

[torrents]

now that we have that cleared up i don't have to feel like a criminal when i back up my property... now they just need to come clean about how the profit margins on dvds are twice those of vhs and they'll be on a roll...

Dual use technology

[deblau]

Disclaimer: IANAL, and this is not legal advice. I'm not even going to cite authority correctly, so nyah.

In order to understand 17 USC 107, you have to read the interpretations given by the Supreme Court in the Sony-Betamax case. Basically, it comes down to interpreting 107 in light of the four factors laid out by Congress:

(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.

(Thanks for the link, btw.) Sony won because the Court found that: (1) time-shifting was a noncommercial use, (2) broadcast TV programs could already be seen free of charge, (3) copying the entire program didn't matter (see (2) above), and (4) incentive arguments don't apply to timeshifting because they were giving it away for free already. Sony-Betamax pp. 448-50. This part of the analysis is directly analogous to the use of P2P software for legitimate, noncommercial, nonprofit purposes (distributing Linux ISOs, etc).

In the dissent, Justice Blackmun points out that Congress did not make an explicit exemption for private use, when they easily could have. p 474. He claims that the majority ignored "the potential market for or the value of the copyrighted work." p 484. He claims that VCRs take control away from the copyright holder, so time-shifting can't be fair use. p 486.

VCRs, recording broadcast TV, have the primary purpose of time-shifting. p 423. The 5-4 majority found that time-shifting was fair use, so VCRs are OK. The problem is that the Court didn't consider tape-to-tape copies, or technology whose primary use is copyright infringement. The Grokster decision said that the primary use of the software was infringement. The question for the Supreme Court to resolve is whether software which is dual-use (legitimate and illegitimate) should be legal. The answer will probably involve some fancy line-drawing, creating factors for consideration from policy arguments including: the ratio of legit to illegit use; providing incentives to innovate; protecting the rights of the copyright holders; the rights of people to freely communicate using the Internet; the potential or actual economic harm to copyright owners; the harm to other businesses which rely on P2P software to distribute their wares; and to what extent the Court itself shoud be deciding these issues, in the absence of Congressional action. In other words, it's a big, fuzzy hairball.

The point about Congress shouldn't be overlooked. Answering questions like "how many people bought a CD only after downloading a song" and "how much money is the recording industry really losing over this" are best answered by experts hired by a third party (Congress), not by courts who have limited fact-finding resources, and who can't take such independent action on their own. Courts have to respond to what the lawyers put in front of them, and nothing else. And it's much cheaper for the RIAA to go to Washington and have taxpayer money spent on such studies than for them to fund it themselves. Consider writing your Senators and Representative and asking them to audit the RIAA's books.

P2P = FTPs + indexing...

[Kjella]

To put it even simpler, sharing files directly between peers was one of the oldest functions of the Internet and FTP (File Transfer Protocol) was the main method. This predates the web by many years, and is one of many protocols like HTTP (web), SMTP (sending e-mail) and POP (recieving e-mail). However, it lacked a good way to index content.

What we know as peer-to-peer programs today serve fairly much the same purpose as search engines such as Google do for web. It indexes files from each peer to make it easily accessible. MGM v. Grokster is trying to prevent easy access to copyrighted files by preventing easy access to all files - a practise as stupid as making Google liable for linking to copyrighted content.

The transfers themselves have been going on for decades and each transfer stands on its own legal merit - either legal or not depending on the content. This is not new, no matter what they claim. The only real question is if the indexing service will be outlawed.

Kjella

Suggestion for fair use

[LucBorg]

I don't know how many here are familiar with Valve's Steam system. In this, you have to register all your valve produced games (HL, HL2, CS etc) to an account, and so everyone trying to play online must have their own registered copy of the game. Why don't music companies adopt this system? That way, we can buy and copy our music to a pc, but anywhere in the world, we can log into our account and listen to our music. It works with computer games, so why not apply it to music and dvds?

copyright=expression, not idea

[goldfndr]

Btw, getting rid of copyrights will also destroy every open source project as some greedy company would be able to easily rip off the hard work of the developers.

If you eliminate IP then selling ideas would be against the law. All ideas would be free and without copyrights any idea is public domain. I mean of course you wouldn't be able to provide yourself a means to live if you were in the trade of ideas.

Congratulations, you've fallen into the Intellectual Property (IP) trap of confusion. Copyrights "protect" expressions, Patents "protect" ideas.

On the other hand, perhaps you meant "expressions" instead of "ideas" throughout your posting; you certainly didn't elaborate on specifics.

Turning copy

[Anonymous Coward]

Didn;t know this for a while, but you can make copies for your significant other and this is known as a "turning copy".

Well, then mod it up!

[KlomDark]

This just goes to show that we need a moderation system for laws, etc:

Fair Use is a good thing, so mod it up to '+5 Law: (Good for society)'

IP != Something

[Anonymous Coward]

So no theft.

You still have your IP.

I have just infringed on your monopoly, though. That is a civil matter.

Captain,

[Anonymous Coward]

Silevrspur is saying that *you* can sue him to get your crontract enforced by a court, but the *government* cannot do so at its own behest. Also, if you do sue, then he will have a right to ask for trial by jury.

If the jury decide that Silverspur is, although guilty of breaking the contract, CANNOT reasonably be forced to obey the contract, then they can give him a bye. He may now have broken a law (tort), but the peers believe he was justified in doing so (or that you were not justified in trying to force compliance).

Re:Captain,

[cpt kangarooski]

I bet he's not.

AFAICT he seems to be saying that NDAs, assignments, etc. are unenforceable. (Or the opposite, depending on where he is in the conversation, if not on Mars)

Contracts are enforced by the government at the behest of the parties or at least beneficiaries. I certainly didn't say that the government could sue for breach of contract out of nowhere, and it's crazy to think that anyone is arguing that either. If that's what he thinks I'm saying, then he's pretty screwed up right there.

Think this way...

[Anonymous Coward]

DMCA/EUCD are blocks to remove copyright protection schemes, yes? Well, copyright only protects against *unauthorised* copies. See where I'm going yet? But now that they have said "you can copy for personal use", the copy protection has no copyright to protect - you have license to copy. Ergo, DMCA/EUCD does not work here.

Re:Think this way...

[Alsee]

The DMCA, and as best I know the EUCD as well, do not care if you are commiting copyright infringment or not. They make the act of circumventing DRM itself illegal.

-

you are both wrong

[iamnotanumber6]

the right to copy belongs to society. specific and limited rights are granted to an author by society to promote progress. the rights are limited in their length of time, as well as in their scope. the law is an exception to "fair use", not the other way around.

certain examples of "fair use" are spelled out in the law, but this is one of those "including but not limited to" kind of things. the lawmakers and the courts continue to have the power to make decisions about what is and is not granted to authors.

but when powerful corporate lobbyists like the RIAA/MPAA want to stop something that has clearly been established and retained by society as "fair use", the politicians bend over and pass a law like the DMCA, which skirts the issue by outlawing the circumvention of a technological copy protection scheme, even when the act of making a copy (as acknowledged by the MPAA) would be legal.

Canadians Rock! (and roll)

[iamnotanumber6]

Alright, I can stay up later than you, even if you're on the west coast. Don't say i didn't warn you to read the copyright act!

If you can legally borrow something from a library, copy it for yourself, and then return it legally, why can't you legally copy things you *RENT* (movies, for instance). Why won't stores that sell software normally accept the software for refund (ie, exchange for same product only) if the package has been opened?

You're changing the subject, we're not talking about movies or software copying. The thread started by Sentry21 is about copying/ripping other peoples' CDs or MP3s.

The Canadian government charges a levy (tax) in all ridings (um, I don't know what Americans call a riding - a district?) on all blank audio recording media (blank CDs, iPod hard disks, whatever), which is distributed to musicians (more likely to musicians' labels and lawyers) through CRIA (the Canadian franchise of the RIAA). This makes sure that musicians are paid for their work (yeah, right), and makes copying/downloading/sharing of music a happy easy thing for all, and means that ordinary people doing home taping like they have been since, what, the sixties?, don't destroy the music industry. And they don't have to be called "pirates" and go around with a peg-leg and an eye patch saying "arrrr billy, have you ever tasted...."

YET, in spite of these two inalterable facts, the law is still being broken. Why? If you can show me anywhere in the Canada Copyright Act or anywhere else in the Canadian Criminal Code where this specific thing is covered, I'd sure like to know about it.

Well, if you had read the copyright act as I suggested, you would have found that Bill C-42 (1985/1997, the Copyright Act) Part VIII, Article 80, provides that:

"...the act of reproducing all or any substantial part of a musical work embodied in a sound recording... onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording [unless it] is done for the purpose of (a) selling or renting out, or by way of trade exposing or offering for sale or rental; (b) distributing, whether or not for the purpose of trade; (c) communicating to the public by telecommunication; or (d) performing, or causing to be performed, in public."

N.B.!! This does not say that you must own (or "licence") a copy of the original media - you have the right, as a Canadian, to reproduce music for your own personal use, regardless of where you copy it from, since you pay the levy on the blank media you copy it on to. That pays for the music (that you probably wouldn't have paid for in the record store anyways). http://laws.justice.gc.ca/en/C-42/39673.html#rid-3 9796

Because from where I'm standing it seems that the *ONLY* interpretation is that access to personal use copies must be lost when access to the work being copied is lost.

Well now you can stop being a loser, and start sharing all the music like you should:

sharing copies of music does not fall under personal and private use, so you have no right at all to make copies that are going to be shared unless the copyright holder gives you such permission.

As reported by the CBC:

"...on June 30, 2004, the Supreme Count [sic *] of Canada ruled that [...] 'No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings," von Finckenstein wrote in his 28-page ruling. "They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service.'

[* although it's amusing to imagine von Finckenstein, the "Supreme Count" of Canada, making the ruling, most likely the CBC is here referring to the Supreme Court justice who pre

Re:Canadians Rock! (and roll)

[mark-t]

I know what the Supreme Court decided, and as a person that has a vested interest in the value of Copyright, I believe they are _wrong_. But let's veer off of opinion here and stick to the facts:

Sharing may not be considered "distribution", but that doesn't really matter. Copyright doesn't cover distribution, it only governs copying. Nothing more.

No matter *HOW* you slice it, sharing something is, by very definition, something other than personal and private use.

Now that's just fine, except that *WHAT* one may be sharing are just *COPIES* of something, which are afforded to people only on the condition of personal and private use or with permission from the Copyright holder. Thus, when they share the copies, they demonstrate willful copyright infringement which occurred at the time _WHEN THEY MADE THE COPIES_, actual evidence supporting that not appearing until chronologically later when they share the works (and of course, they should not be prosecuted until such evidence exists). Of course, if one wants to share the original media, that is perfectly acceptable, because those copies were produced by someone who had permission from the Copyright holder for non personal use copying.

Now given that, can you explain to me how the supreme court's decision in any way whatsoever respects the value of Copyright and the INHERENT right of the Copyright holder (by virtue of what Copyright actually is, not by any other inherent right) to control who is allowed to make copies of their works (for purposes other than personal/private use)?

Re:Canadians Rock! (and roll)

[iamnotanumber6]

Yes, let's stick to the facts.

Sentry21 noted that Canadians can borrow (someone's) original CDs, rip them all to MP3, and then give them back, and as long as it's for personal use"

mark-t disputed this fact, stating: keeping copies of a work after you have returned it is generally considered as willful disrespect for Copyright and will carry similar penalties to actual Copyright infringement if discovered

I countered that no, mark-t is misinformed, and Sentry21 is correct: Canadians are allowed to copy all the music they want, regardless of whether they own the original or not.

mark-t: No(...) It isn't (legal).

me: Yes. It is. Canadians can borrow a CD from a friend or library, copy it for personal use, and return it. Legally.

mark-t: show me anywhere in the Canada Copyright Act (...) where this specific thing is covered (...) the *ONLY* interpretation is that access to personal use copies must be lost when access to the work being copied is lost.

me: Bill C-42 (1985/1997, the Copyright Act) Part VIII, Article 80

mark-t: (changes the subject...)

The point under discussion was that in Canada, if you lend me a CD, I have the right to copy it and return it. I am legally allowed to keep personal use copies/rips of CDs even if I do not own the original. Do you continue to dispute that is the law, or do you concede that you were wrong?

With regards to the secondary subject:

There is not, and has never been, any concept that copyright is an inherent, god-given right, like the right to life, liberty, and security of the person. On the contrary, it has long been established that the public has the right to copy and perform music, plays, books, and so on. Only in the last century or so, has it been deemed beneficial for society and the law to grant limited exclusive copying rights to authors, for the purpose of promoting progress in society.

Canadians are not required to "respect" some abstract idea you may have about what copyright "actually is" or should be, outside of what is defined in Bill C-42. We are required to follow the law, as passed by parliament and interpreted by the courts.

The Supreme Court unanimously ruled that sharing music on P2P networks is not an infringement of copyright. Therefore, it is simply not an infringement of copyright. Unless the law changes. You may think the law or the court is somehow wrong or disrespectful. Sucks to be you. Fortunately, Canadians don't really go by what Mark from BC thinks.

On the other hand, public opinion and debate is healthy in determining whether laws need to be changed, so by all means, feel free to express your opinion. Just be sure that you know what the law actually is, before you go around telling people that home-taping of music is an illegal infringement of copyright, because it isn't.

I happen to think that home-taping is good for musicians, and that the current law serves Canadians better than an American-style DMCA copyright law would.

Re:Canadians Rock! (and roll)

[mark-t]

There is not, and has never been, any concept that copyright is an inherent, god-given right, like the right to life, liberty, and security of the person.

I recognize that, which is why I qualified my use of the word 'inherent' by focusing it exclusively on what the word copyright actually means, I was not trying to say it was an inherent _human_ right, only an inherent one to what copyright actually is (the exclusive right to copy).

Now... onto the nitty gritty stuff. Since some people seem to think I can't be bothered to read the Copyright Act.

You referred to C42, Part 8, Section 80, which covers copying for personal use. The exemptions are described in subsection (1) as not qualifying as copyright infringement. But nowhere in that section does it state that copying a work which has been lent to you is legal. Consider that if it were, then it should also be legal to copy for personal use any movies or software which may have been loaned to you and keep such copies after you return them. It isn't. It would seem that if it is legal to do one then it should be legal to do the other. Likewise, if it is illegal to do one, then it should be illegal to do the other. Can you show me any part of the Copyright Act, or any other portion of the Canada Criminal Code which contradicts this interpretation?

It futher worthwhile to note that subsection (2) of this same section further qualifies that the exemptions that were allowed under subsection (1) do *NOT* apply if those copies are ultimately used for any other purpose than personal and private use (the text of the bill actually uses a whole lot more words than that, but that's what it basically amounts to in a nutshell).

This is why I believe the supreme court was wrong to say that sharing of music files is legal (without permission from the copyright holder), because those music files are nothing but _COPIES_, and when you share something, you void any notion of personal and private use, which must void any permission you had to make those copies in the first place unless you otherwise had permission from the copyright holder.

Re:Canadians Rock! (and roll)

[iamnotanumber6]

...what the word copyright actually means...an inherent one to what copyright actually is (the exclusive right to copy).

Copyright in Canada is what Bill C-42 says it is, and nothing else. The right granted may be exclusive, but it is not unlimited. It is limited in the case of music recordings, by provisions for "private copying".

nowhere in that section does it state that copying a work which has been lent to you is legal

Nowhere in does it state that it is not legal. Article 80 provides that copying music for private use of the person who makes the copy is not an infringement of copyright. The end. There is no limitation that the person must own the original. The only limitations are on selling, renting, public performance, etc.

Consider that if it were, then it should also be legal to copy for personal use any movies or software which may have been loaned to you and keep such copies after you return them. It isn't.

The provisions for private copying do not apply to movies or software, only to music recordings. There is no right to private copying of movies or software. Under article 30.6, you may make one backup copy of computer software you bought, which must be destroyed if you no longer own the original. There is no provision for making a copy of a movie or book for backup purposes, regardless of whether you own the original or not.

It would seem that if it is legal to do one then it should be legal to do the other. Likewise, if it is illegal to do one, then it should be illegal to do the other.

It might seem that way to you, but my point is that you are mistaken. Movies, software, and music are all treated differently under the act.

In exchange for allowing people to make private copies of music for personal use, even if they don't own the original, a system of taxation is implemented which pays the musicians for this use of their work. If it was only legal to make copies of CDs you own, there would be no monetary loss to musicians, and no grounds for the tax. Furthermore, it would not have been possible for the Supreme Court to rule that downloading music from P2P networks is legal.

There is no similar taxation system for movies or software. So downloading or having copies of them without authorization is illegal. But not with music. Not in Canada.

Believe me yet?

With regards to "sharing": lending or making available for copying is not the same thing as copying. The act says it is legal to make copies for the private use of the person who makes the copy. It's not legal to make copies for someone else's use (although no-one has ever been busted for making tapes as birthday gifts for their friends). I can make a copy of your CD, but you can't make a copy for me - I have to be the one that presses "record". I guess that you are arguing, as the CRIA did, that making your music collection available on a P2P network constitutes making a copy for someone else's use. I can understand that argument, but the Supreme Court ruled that it was the downloader who essentially "pressed record" for his own copy. You can disagree with the decision, but that's the way it is.

Certainly you can lend me your original CD for me to copy and give back. Now you might have a point that me lending that copy to someone else is not "private use" - although the act only mentions selling etc., not lending - i.e. "private" as opposed to "public" or "commercial" use - it says "private" not "personal". But given the Supreme Court decision that private copies being made available on the network for copying by downloaders is legal, I don't think that argument would hold up in court.

Anyways, this is a different issue, the main point was that it is legal to copy music even if you don't own the original. I think I have made that point. If you still don't believe me, do some more research or ask a lawyer.

Re:Canadians Rock! (and roll)

[mark-t]

I guess that you are arguing, as the CRIA did, that making your music collection available on a P2P network constitutes making a copy for someone else's use. I guess that you are arguing, as the CRIA did, that making your music collection available on a P2P network constitutes making a copy for someone else's use.

My argument is actually irrellevant to the court case, because I am not saying that making it available on a P2P network constitutes making a copy for someone else's use, I am simply saying that doing so constitutes non-personal use, and without permission from the copyright holder, a person can't legally copy a copyrighted work for such purposes.

In other words, the specific act that ended up being infringing was the actual copying of the original work onto the person's hard drive, but of course this in and of itself is not illegal. What made it illegal was when it was shared, voiding any notion of personal and private use it might have been previously afforded.

Understand yet?

Re:Canadians Rock! (and roll)

[iamnotanumber6]

No, it doesn't make any sense to me. You just keep saying things are illegal and infringing when federal law and the Supreme Court plainly say they are not.

Anyways, since you still won't admit you were wrong about it being illegal to copy CDs even if you don't own the original, I'm just bored with this now.

Re:Canadians Rock! (and roll)

[mark-t]

I've already said, I believe that particular supreme court decision was wrong. Because it *DIRECTLY* contradicts copyright.

Yes, Copyright does appear to tolerate copying of CD's even if you don't own the original. I recognize I was wrong about that much, because this is inconsistent with how other copyrighted works are handled. However, that wasn't what I was talking about in my last post

Consider the facts:

You have a right to copy a copyrighted work for personal use. Copying for non-personal use without permission is prohibited.

If you decide to share something, regardless of whatever that something may be, it's by simple definition of the concept of 'sharing' that the something is not just for personal use.

Therefore, if _you_ made the copy that happens to not be for personal use without permission from the copyright holder, then you infringe on copyright.

The CRIA's stance was that the infringement was the sharing, *MY* stance is that the infringement is the actual copying, which is, after all, what copyright actually is supposed to cover. But not as the CRIA contends, on the copying that may or may not occur after the material is shared, but the copying of the material onto the hard drive in the first place, which was, when all is said and done, only afforded under plain old copyright law for personal and private use. Sharing those copies, however, defeats any notion of personal use, so copyright infringement must have occurred.

Therefore, I maintain my stance that the supreme court's decision was wrong, and have written more than one letter to my federal government already expressing this view. It violates the Copyright holder's rigbt that he was actually supposed to have by not allowing him any say on who else can copy his works for non personal use without permission.

Misspelling? Maybe not...

[Farmer Tim]

Night is the apocalypse if you're a photon...

And if it seams funny, you need a new tailor.

The Law from a Lawyer

[Anonymous Coward]

Judicial Estoppel is limited to the specific case. As in, MGM will run into trouble with the Judges if they argue to the contrary in this case (and since this case doesn't involve mp3s, it is meaningless). In any other case filed with the Court by MGM or anyone else, they can argue to the contrary on this point or any point. Indeed, Rule 8 of the Federal Rules of Civil Procedure state explicitly that you don't have to be consistent in your pleadings to the Court in any case. Judicial Estoppel is just a tool for a Judge to use when you switch arguments in the case and they don't agree and don't want to write a decision on why you are wrong. That is why people who represent themselves in court cause so many problems, they don't understand the whole picture and sieze upon definitions in a law book.