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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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.

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.

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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?

[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?

[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?

[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?

[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.

-

So.....

[FS1]

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

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.

'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'

[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.

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.

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.

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

[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.

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

[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: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.

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.

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

[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

[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

[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.

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...

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!

[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.

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.

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.

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

[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]

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.

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?

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: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: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).

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: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.

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.

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]

[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]

[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:Omigod!

[ozric99]

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

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.

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.

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: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: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.

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.

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)).

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