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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.
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.
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.
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.
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.