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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?"
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.
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).
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.
"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.
Vote for Pedro
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?
"Sufferin' succotash."
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.
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.
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...
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.
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.
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.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
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.
What comes first, finding a teacher or becoming a student?
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.
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).
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.
Sometimes it's best to just let stupid people be stupid.
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).
"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.
Bill Clinton: Pimp we can believe in. - The Shirt!!!
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.
[...] 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.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
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.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
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!
sex is better than war!
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.
fast as fast can be. you'll never catch me.
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.
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."
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."
fast as fast can be. you'll never catch me.
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.
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.
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.
Constitutionally you can't waive those rights. I know. You're addicted to practice and precedent set by the current state of affairs.
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.
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.
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.
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.
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.
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.
fast as fast can be. you'll never catch me.
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.
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.
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
Live today, because you never know what tomorrow brings