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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?"
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.
So, basically Hell has frozen over, or is it just experiencing a temporary ice age?
A Fatal OE Exception has occurred, Sig will now reboot.
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.
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.
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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.
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.
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.
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.
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.
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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.
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.
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.
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Your post attests that this idea is dying out.
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.
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?
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.
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.
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.
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.
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.
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.
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.
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.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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?
Who is John Cabal?
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.
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.
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).
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.
So you need proof that the 'Axiom of equality' is true.
'Axiom of equality' For all x (x = x).
"Oh drat these computers, they're so naughty and so complex, I could pinch them." --Marvin the Martian
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.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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..."
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
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.