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

[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

[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

[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.

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?

[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).

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.

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.

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.

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.

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: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

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.

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.

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).

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.

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 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.

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)).