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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?"
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.
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
The only things certain in war are Propaganda and Death. You can never be sure which is which though
soundtrack to What's The Worst That Could Happen?
soundtrack to Josie & The Pussycats
soundtrack to Rollerball
Need I go on? Ok, I will:
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.
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
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.
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 want a new world. I think this one is broken.
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.
When you look at the state of the world, how can you not become a radical, liberal anarchist?
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).
The Doormat
If you're not outraged, then you're not paying attention.
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....
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.
Quality Hosting e3 Servers
Pragmatically, in this case what matters is what the SCOTUS thinks. Here's one opinion:
A popular quip around the SCOTUS, due to its divided nature, is "let's just take the case to Sandra Day O'Connor".
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
No they can't, according to this article:
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.
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.
eat shiat and bark at the moon
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.
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.
I wish I were as sure of anything as some people are of everything
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.
Did I say overlords? I meant protectors.
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.
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.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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:
(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.
This post expresses my opinion, not that of my employer. And yes, IAAL.