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Judge Rejects RIAA 'Making Available' Theory
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
This really makes me smile, I'm not in the US, but I follow the news on these kinds of cases (mostly on Slashdot), if only this would get more mainstream coverage.
This is the sig that says NI (again)
Was that the sky falling that hit me on the head or just a smart-stick!
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
It is about... damn... time.
So this form of copyright infringement is illegal, but the law impossible to enforce? Not a good situation. Congress will be forced to give IP rights holders increased power to police infringement.
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
It's worth noting that unlike the typical NewYorkCountryLawyer story gloating about how the RIAA lost some motion on some case somewhere, this is a potentially major development.
What I'm listening to now on Pandora...
No, putting up the sign makes it "intent to distribute", which is not the same as having files in a publicly available folder. This would be like making a copy of a song on a CD, leaving that CD on your porch and having someone come along and pick it up. Then getting sued for distribution.
I stole this sig from a more creative user.
Who the hell gave them the power to just wantonly dispense fair and balanced justice like this? Judges have always been empowered to make huge decisions, but this new behavior is becoming quite alarming. Common sense has been creeping into recent rulings with alarming frequency, and many decisions seem to be based on information, not cash-backed opinions.
I hope this behavior doesn't continue... the entire American way of life is at stake!
I like to place meaningful quotes in my sig, so people will know that I know what meaningful quotes are.
FUCK YEAH CT
I blame geof's speakers.
I can see the merits in both arguments. Why is making available rejected in this case but not in the Thompson case? How are these different?
Not quite. I'm not a lawyer, but I'm guessing your tactic would constitute commercial infringement and thus fall into criminal law (or at the very least a different set of laws), whereas small-scale sharing without any money being made would fall under civil law, which is what this case is interpreting.
It's about time one of these cases went before a judge that didn't subscribe to the "series of tubes" mentality. Woo hoo!
IANAL, but
unless you actually sell one , no you will not be charged just for setup the sign
The courts/lawyers quote that come up in in the docs linked on NYCL's blog say something like "a mere offer to sale does not violate the rights under [copyrighlaw] unless the offer is actually consumed by the public"
you might get in trouble if you have reproduced the phonorecords you want to sell without the permission of copyrightowners though.
I'm taking a poll. What do you think the RIAA will do now with this case?
(a) Walk away.
(b) Bury the judge in paper with a 'reconsideration' motion.
(c) Ask Mr. Brennan to "settle".
(d) Other.
Ray Beckerman +5 Insightful
The situation you describe is akin to when police bust drug dealers in undercover operations - they have to wait for the sale to be completed (money to change hands) before they can arrest and charge the individual with dealing.
common sense and decency were on the stock market they'd be way up today.... thats the most refreshing legal thing ive read since amazon had some 1 click patents overturned (albeit partially) several months ago
w00t
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
Correct, someone WOULD (sue, not arrest) you. Once you burn copies, you're violating copyright, even if you didn't sell any. This ruling doesn't apply to you at all; anyone who comes to your stand can see proof of your illegal activity.
It does, however, apply to the defendant in this case. The reason the RIAA needed the "making available" theory is because they did not have any actual proof that their copyright had been violated. If I've got an MP3 in a public folder, what have I done? Have I illegally copied anything? Doesn't seem like it. Have I created a derivative work? Arguably, if I ripped the MP3, but maybe I downloaded it, and ripping a CD I own is almost certainly fair use anyway. Have I distributed it? Well, if the RIAA has proof of me distributing it to someone, they've got me. Obviously, in this case, they don't have proof of that. All they see is that MP3, so the "making available" theory says that, even in the absence of proof that their rights have been violated, they should be able to sue people.
What happens if you leave a DVD on your front lawn, I come along with my laptop, rip and burn it? THAT is what this case is talking about. Have you broken the law by leaving that DVD on the lawn? I clearly have, by copying it... the RIAA thinks that you have, too. The judge, luckily, knows the law a little bit better. You have proof, or you have nothing.
It's like with drugs: You can't get arrested just for walking around with a sign that says "Drugs for sale."
This is a blow not only against the RIAA legal machine, but also against "thought crime" of all sorts (such as the argument that selling guns facilitates murder). So even as significant as it is by itself, it is a FAR more important decision than it appears.
~REZ~ #43301. Who'd fake being me anyway?
The cop can't arrest the prostitute until money has changed hands either.
No, but they can arrest the "John" for soliciting, and no money has to change hands. Which is why cops often pose as prostitutes - it's great to get the statistical # of arrests up on a slow month.
Seven puppies were harmed during the making of this post.
Except that depends. If "shared folder" means "folder shared and indexed by a p2p service, such that said service's other users are made aware of the track's availability upon request", then it's more like the GP's example than yours.
Actually it's like the GP's example with a much more effective marketing budget.
I do agree in a literal sense that "merely making available" should not be enough to get a judgement; but I don't agree if you're saying that putting a track on kazaa is "merely making it available".
In many cases merely a large amount is considered proof of intent to deal. Here in California, over an ounce of pot is considered proof of intent ( although in practice it seems that you have to have a duffle bag full before they actually prosecute. ) The theory is that there is no other reasonable interpretation of your actions/circumstances.
Back to TFA, it seems that putting large numbers of copyrighted works on a server falls under the same logic. ( I don't necessarily agree with the law, I'm just describing the logic behind its application )
I am TheRaven on Soylent News
Actually this is more like setting up a DVD burner on your front yard and leaving your DVD collection available with blank disks for someone to come and make there own copies.
Personally I'm curious what proof that a file has been downloaded the judge would like to see in future cases.
But in that case, the crime itself is "soliciting", from wikipedia: consists of a person offering money or something else of value in order to incite or induce another to commit a crime with the specific intent that the person solicited commit the crime. So the crime is to offer the money, the other party do not have to accept it in order to consume the crime.
Ubuntu is an African word meaning 'I can't configure Debian'
if you fall under german copyrightlaw you have that "right" to make a copy for personal use 53 of the specific german statute,
but if i understand your american copyrightlaw, making a backup is NOT one one of explicitly mentioned fair use rights (actually it's "defense" not rights if I understand it correctly)
I know about usage/copies for for example criticism, parody, news reporting but NO mentioning of copies for "backup"
yes, but you can't use "intent to commit copyright violation" as evidence that actual copyright violation is happening - where as intent to distribute is in itself something criminal, separate from actually dealing.
Thats because no-one can get a conviction in California. Look at Oj, and Micheal Jackson, I am sure there are a few more.
I have mod points and I am not afraid to use them.
except that the people being sued don't know much about computers. if i asked anyone in my family what files they are sharing online, they'd probably say none. however, they are sharing all the folders they have in limewire without realizing it.
it's also not like the GP's example because no where are these people charging and i'm sure most are unaware they are even sharing their files.
I tell my ex-wife she is a whore because she took my money and I get arrested for that. SCHE should be the one in jail.
Don't fight for your country, if your country does not fight for you.
Wouldn't you do better to look at Obama's numbers before he became popular as a baseline for Slashdot's influence? That poll we had showed Obama with several times Ron Paul's support.
... talkative ... as Dr. Paul's supporters, though, so maybe that's why people don't notice them as much.
We're not all Libertarians around here, and the pollsters always mention that Obama gets most of the educated Democratic voters. It's true that Obama supporters aren't as
Its neither.
.10c page to use their photocopier and makes you use some sort of 'printer card' that you prepay to fill... would that make them infringe? I doubt it...most libraries -do- charge for photocopies.
1) You don't 'index and share your songs via Kazaa', Kazaa et al, do tha all by themselves, without user intervention, in their default course of action. Many users aren't even aware 'they did it'.
2) I've always liked the library analagy. Its a public building, open to the public, and full of books. Photocopiers are placed conveniently often even marked with signs --> photocopiers this way. The books are carefully organized to make them easy to find. And there are computers scattered around so you can look them up that way too.
They've set everything up they possibly could to let you make copies. Yet if you do so, YOU are liable for infringement, not them.
By analagy, if I set up a computer, put it in a public place (like the internet), with songs available on it, and also set it up with tools that will make copies of those songs for you if you send it the right commands.
Now if you send my computer a command to transmit you a copy of the song... shouldn't YOU be liable for infringement? My computer isn't making copies and sending them out... YOU asked my computer to do it. All I did was set it up to listen to requests.
How is that fundamentally different from a library? If I could somehow operate the library photocopier by remote from my computer, would that suddenly shift the blame for making copies to them? I should think not. Its still YOU who have (remotely) operated the copier to make an infringing copy.
Finally, as a side note... if YOU own the CD in question, and feel its easier to download a copy using my publicly available computer to send you one, rather than ripping your own CD. Shouldn't that be legal. I as the computer owner have done nothing illegal by making it available. You have done nothing illegal because you have the right to make personal use copies of that song by virtue of the fact that you own a copy.
Why or Why not does this 'theory' work?
Finally if I charge you for access to my system that allows you to make copies am I a pirate then? Good question... interestingly, I still think not. If a library charges you
So its only infringement if they start making the actual copies themselves. Setting up the equipment and letting you operate it, even if they charge you for access, doesn't make them liable for infringement.
Although at some point you might argue that their is a conspiracy to commit infringement...
Isn't this "making available" approach like trying to sue someone for simply having a stack of books piled up next to a public photocopier? I guess book publishers should try to sue libraries...
It must have been something you assimilated. . . .
This is rather rare in todays court system. Lets hope it spreads like a virus.
---- Booth was a patriot ----
If you intentionally put that share on an index, that's one thing. If you don't know that some program you downloaded to try out would put it there for you, that's entirely different. If some port scanner dude comes along and finds your open share (I get several attempts per day trying to see if I have open shares) and indexes it and submits it to somewhere that eventually makes it to a public index, that is yet different, still. To some extent, that company that makes these share things so wide open is partly to blame.
You can bet that already by now, at least a few congress people are getting their wallets greased by the RIAA to change laws to specifically outlaw making available.
now we need to go OSS in diesel cars
However, you're absolutely right that some of the best rulings have come in default cases, which of course really has to make you wonder. Examples are Interscope v. Rodriguez, this case, and Atlantic v. Dangler.
Thing is, in Dangler they came back with a reconsideration motion, there was still no one fighting back, and the judge was hoodwinked by the RIAA's mountain of phony papers, and went ahead and entered the judgment. I also liked that expert report from the other day. I really hope that information gets presented in court a lot more often. Yes, Prof. Pouwelse's report is a landmark event, and thoroughly exposes the RIAA's junk science as 'borderline incompetence'. (See discussion on Groklaw.)
Ray Beckerman +5 Insightful
Perzac'ly... whereas the RIAA was contending that "You have a vagina; therefore you are a hooker. Hands over your head!!"
~REZ~ #43301. Who'd fake being me anyway?
No, putting up the sign makes it "intent to distribute", which is not the same as having files in a publicly available folder.
It's not? Come on now, I'm firmly anti-copyright, I believe that restricting the supply of an infinte resource is theft, but this argument is silly. MP3s don't share themselves.
Give me Classic Slashdot or give me death!
You are correct. The following are listed as forms of reproduction that are protected and exempt from copyright.
Criticism
Comment
News Reporting
Teaching(including multiple classroom copies)
Scholarship
Research
Ref: Circular92: Copyright Law of the United States and Related laws contained in title 17 of the United States code.
Circular92 Chapter 1 Section 107
They'll get you somehow. Even if you don't have pre-burned copies and when approached you don't make any copies nor allow others to make their own, they'll get you on something, be it operating without a street vendor's license, violating zoning laws, loitering (even on your own property), or just plain false advertising.
You're always guilty of something. And if not you, something you own is.
Expect a server that lists purported contents but refuses to serve anything on any request to be declared a public nuisance device subject to forfeiture.
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
That's a good point, except that the photocopier is there for other purposes- one of which could be copying books. But it's not placed there for that. It's placed there to make copies of anything that is legal to be copied.
Now, a shared folder is there only to share copies of what's put in it. In fact, there are probably many other things that could be copied that aren't neccessarily under copyright- but if they're not in that folder- they're not going to get copied. You can show express intent with a folder with a single use VS a library copy machine that has many legit uses.
And if you do set up limewire to send a friend who owns the CD the files, that's technically not against the law (I think..) but since you're using limewire, you aren't controlling who else may get access, so that'd be where the grey area starts..
Anyway, good points. Mod parent up.
Belief? Hope? Preference?The Existential Vortex
Does this decision in of itself have any real significance in terms of the RIAA's plethora of lawsuits? I'm not entirely sure how this works. Does this set precedent, or is the judge in question not high up enough in the hierarchy for this decision to become case law?
I realize that every victory counts, but what I want to know is whether this will affect similar cases in the future.
On the other hand, if you open a market stall with 100 original CDs, a CD burner, and lots of empty CDRs, and offer to make copies for money, that is not copyright infringement until the moment when you actually make a copy. No customers, no copy made, no copyright infringement.
erm... possessing crack cocaine is illegal, whether you bought it from the RIAA or not.
"Wise men talk because they have something to say; fools, because they have to say something" - Plato
Prosecution: "Your honour, the defendant repeatedly said in public that he was going to kill his wife, shoot her, cut her throat, poison her. What more evidence do you want that he murdered her?" Judge: "Maybe something like a dead body? His wife is sitting besides him, breathing quite normally, and I heard her snoring, so I won't find the defendant guilty".
whereas small-scale sharing without any money being made would fall under civil law, which is what this case is interpreting
I'm pretty sure that the scale and (lack of) money involved doesn't make a difference - copyright infringement is a criminal offense. The reason that the RIAA are trying for damages in civil suits is that it'd be nigh-impossible to actually convict anyone for file sharing in a criminal case (plus, probably no prosecutor is insane enough to waste resources on such things).
So I'm pretty sure the law is the same, it's just a matter of who chooses to bring suit and where. And no, you can't be charged with copyright infringement for offering to make bootleg CDs (there might very well be something they can charge you with, though).
sic transit gloria mundi
Forgetting the RIAA for a moment, step back a few light years and think about the long history of music. In terms of centuries, this desparate troughing that the RI (recording industry) has managed over the last half century is like a burst of activity in the gold fields, then something fundamental changes and for some reason the Gold Rush ends. If the RI wants to stand in the middle of the deserted gold fields screaming "poor me", then so be it, but if a fundamental aspect of "gold production" has changed, then, sorry, but it's *over*. You (RI, RIAA et al) have to look for something else to do "after the Gold Rush", rather than try to sue the consumers for not buying *your* Gold anymore.
So what about claims that the MI (music industry) is dead by association? This seems to be another illogical grab for air in a bid by the RI to survive. The MI has existed since the first huddle of cavemen got together, beat drums in time, and feasted with a dancing tribe. Music and the MI preceeded the RI gold rush and did quite well about it thank you very much. Musicians are artists and art is most often a matter of the heart searching for and finding expression. Cash is all well and good, but at the end of the day if payment for music is extinguished altogether, music will prevail irrespective. Art is not extinguished by poverty, so neither is music. Only greedy troughing is extinguished by poverty.
Here's a tip: I play in a band. We're not too bad at what we do. We put smiles on faces every show and most of the time we cover our up front costs. We never cover our "hours" put in, and we don't care, because it's Art, and we all have day jobs anyway. And guess what? There's no greedy corporation troughing from *our* Art.
Copyright law does not distinguish, in defining "distribute", between copies paid for vs. copies given away for free; so while arguing that "not charging" is a difference makes a nice bit of sophistry, it's really nothing more than that; not charging isn't a relevant difference for this conversation.
As for the user not "knowing much about computers"... There's a lot that could be said about that, but for now I'll leave it at "that'd be up to the jury to decide".
Yet suddenly the retail stores are no longer victims if the studio sells it online.
I can't help but wonder.
If I put my Music collection in a web accessable folder such as mydomain.com/dansmusic (not linked to from root) an someone finds the folder and tells others about its existence.
Would I get in trouble for that under this ruling? In my opinion I'm not making it available because I'm not targeting any audience.
~Dan
An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
Probably an unpopular opinion, but my basis for thinking so is that it's not just an issue of making something copyrighte available, but making a *COPY* of it available... the catch here is that other than for certain specific exemptions, copying a copyrighted work without permission is copyright infringement in the first place. I'd dare say that choosing to make the copy that one makes publicly available doesn't fall within any of the exempt categories.
1) I don't really buy the "user doesn't know" argument; it doesn't take a 4-year degree to know what kazaa is doing with the files you put in its share folders, and at some level a user is responsible for knowing something about the tools he or she employs. At best, I'd say that would come down to a case-by-case jury decision.
2) The library analogy is seriously flawed. Let's say you decide to copy an entire book using library photocopiers, at $0.10 per page. You'll typically pay more than a new copy would cost, and the copy you get will be pretty low quality; so I don't really see how the library has given you "everything you need" to get illegal copies of their books.
You'll also need quite a bit of time for this project, and may be told to stop and/or kicked out of the library before you can complete it. Oh, the staff might not bother -- librarians don't always feel like they're paid enough for that kind of confrontation -- but if you check the library's policy, you'll probably find that they're supposed to. (You might also notice signs around the copier that put you on notice that you're supposed to obey copyright law, though that detail depends on the library.)
See, unlike kazaa shares, the purpose of library photocopiers isn't copyright violation. The purpose of library copiers includes things like "fair use", which is legal (though the RIAA would love for you to forget that fact). For example, copying a few pages of a reference book for academic purposes is legal. The copiers are well suited to this purpose (in much the way that they are not well suited to wholesale copyright violation).
Check your facts. The primary differences between civil and criminal infringement in the U.S. are commercial intent and scale:
Not that I support the law -- I'm fully anti-copyright -- but your assertion was nonetheless in error.
P.S. I also found it interesting that there's also a statute of limitations on copyright infringement, three years for civil proceeding and five for criminal: Section 507.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Alternatively, it's because he can speak with some authority. Many of his posts are thoughtful, insightful paragraphs that educate the average /.-er. And even the ones which are just single-word answers benefit from his experience and reputation. This is not uncommon when you have other notable people commenting in articles relevant to their expertise, people like Jimbo Wales or Bruce Perens.
It's not a factor of them being upmodded because of who they are, but rather being upmodded because their expertise and commentary is relevant and benefits the community of readers as a whole. It's perfectly possible to have this phenomenon arise because of a person's situation as opposed to position or reputation, such as if a person was on Slashdot in the middle of a major event like a terrorist attack and offering a crucial and unique perspective.
The retail stores were never the "victim" as you put it; this is about copyright violation, and the copyright doesn't belong to the retail store. Hence the law suits come from record labels (Sony, etc.); not retail stores (Best Buy, etc.).
Your scenario of putting copyrighted material on a web page to be later discovered by others is interesting (but very different from the typical p2p examples IMO). It may come down to inferred intent; the typical reason to put a file on a publicly viewable web page -- especially without protections to prevent, say, Google from indexing it -- is to distribute that file.
My point, though, is really that the digital world today creates a vast grey area that's untested. The lines need to be drawn. The laws haven't kept up with technology, and that cuts both ways. Of the things you can do today that you couldn't feasably do ten years ago, some shouldn't be illegal and others should -- it's not all going to go to one side.
The RIAA's "making available" theory seems like laziness -- why go to the trouble of proving out all these little details if they can find a way to make a sweeping claim over every "shared" folder?
But meanwhile, the extreme opposite position -- that nothing short of proving individual downloads should constitute infringement -- sounds like a five-year-old's "I'm not touching you" B.S. (with more of a "you can't prove I'm touching you" spin).
The ruling by the judge has nothing to do with the naivity of the subject or automaticity of the software, but specifically with the lack of concrete evidence. Copyright (civil) laws are quite a bit different acts of *criminal* negligence such as drug trafficking or even driving violations.
... "without actual distribution of copies . . . there is no violation [of] the distribution right." ... ... requires "[f]actual allegations [which are] enough to raise a right to relief above the speculative level."
"""
A plaintiff alleging copyright infringement must establish two elements: "(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are original."
a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'
"""
"Copyright law does not distinguish, in defining "distribute", between copies paid for vs. copies given away for free"
You could argue that there's a good reason for that. When copyright law was developed, it was impossible to make large numbers of copies of something for negligible cost. Therefore, it was a reasonable assumption that anyone making multiple copies of a book or vinyl album or even a CD was doing so to sell them. Copyright law is all about stopping that from happening, which is why it appears to some to be so unjust when applied to free distribution.
I have seen this kind of pattern before.
this type of case represents a precedent and may be used by all previous litigants to have their cases appeals.
This begins to look like the beginning of the end for the RIAA.
Understanding is much like a 3-edged-sword. in this: there are always 2 sides and the truth.
First off I'll start with the point at hand. It's glad to see a judge rule in favor of the consumers for once, but this is certainly only a minor battle that is a part of a larger war. Just remember the precedent set here could involve further detriment down the line whereas since the *AA's cannot get users on "making available", they'll just lobby for changes to the law that allow them to prove that you were doing what they thought you were doing. That said, of course we all know it is stupid, but there is a legitimate place for "recording companies" as distribution companies as well. While arguably they have abused their position, they are certainly helpful in their actual form. Face it, not every music star out there is also a lawyer nor are they a computer technology junky. You need a spot for them to distribute music, and preferably they'll want someone else to manage the business side of their work. It's easy, it's safe, and they generally made some good pay off of it. Not too many artists cared because what do they mind as long as they get to do what they enjoy and not have to deal with any of the fluff? It's like saying we all could just build our houses ourselves and save tons of money but instead ask a builder to do it because they specialize in doing that sort of thing. Now, to the specific case at hand. "Making Available" really depends. I do not enjoy the comments that proclaim ignorance on behalf of the end user as a valid defense. People are not "ignorant" to what Kazaa, Bearshare, Napster, and all of those tools do. The reality is that people do not use Kazaa to legitimately share linux ISOs. It's not known in the community for open source software distribution either. Exercise a little common sense here. When someone hears Kazaa, you immediately think pirated music and movies. That said, Kazaa and said applications also include wizards that walk you through sharing your files. The fact of the matter is there is a deeper fundamental "problem" in the sense that people don't want to pay for a specific form of entertainment. Music is something we take for granted. It's sound, it's recordable, sharable, and something we hear every day. We have a favorite song and we want to find it. The real question is how do you get people to pay for it? The fact is that not everyone who wants said song is willing to pay for it. I don't care if the cost is $0.50. If you give them the choice between FREE and $0.50 per song from the author directly, there is still a vast majority of people out there that will take the free option. What we need are better distribution methods, cultural education to help people become more accustomed to wanting to help others out. Right now we're in a culture of "Screw you I need to get where I am and I'll step over you to get there." Until that changes, authors have full rights to use technology to make sure that they are getting just compensated for their work. If you're willing to take something for free from them, why aren't they able to take something from you in return? Just some food for thought...
1) I don't really buy the "user doesn't know" argument; it doesn't take a 4-year degree to know what kazaa is doing with the files you put in its share folders, and at some level a user is responsible for knowing something about the tools he or she employs.
.10c/page.
I agree. The OP was arguing that putting files in a shared folder is a deliberate action on par with drawing a sign saying "get CDs here for $5", and I disagree with that. Most people get kazaa to download music, not to share music. That limewire etc share music by default, is almost incidental. People should be responsible for knowing what their tools do... but now were talking a case of the "the user was too lazy to figure out that they were sharing" instead of "the user took a conscious deliberate action to share".
2) The library analogy is seriously flawed. Let's say you decide to copy an entire book using library photocopiers, at $0.10 per page. You'll typically pay more than a new copy would cost, and the copy you get will be pretty low quality; so I don't really see how the library has given you "everything you need" to get illegal copies of their books.
Lets break that up point by point:
Let's say you decide to copy an entire book using library photocopiers, at $0.10 per page. You'll typically pay more than a new copy would cost,
True in some cases, not in others. Kids books like "The Pigeon Finds a Hot Dog!" is some $12.00. Probably cost under $2.00 to copy at
and the copy you get will be pretty low quality
That doesn't make them somehow legal.
You'll also need quite a bit of time for this project, and may be told to stop and/or kicked out of the library before you can complete it
Only if i were to attempt to copy the entire library. I typically only download one or two songs from any given person, not their entire library. Besides, scale is not important. It only takes one book to infringe copyright.
(You might also notice signs around the copier that put you on notice that you're supposed to obey copyright law, though that detail depends on the library.)
It wouldn't be hard to add to the kazaa protocal a message that says 'please respect copyright' when someone connects. Would that some change anything?
See, unlike kazaa shares, the purpose of library photocopiers isn't copyright violation.
Can you really say the 'purpose' of kazaa shares is copyright violation? What if I put copywritten files in there so that someone who stepped on their copy of the CD can download a new copy from me? Or to save people from having to tediously rip their own CD's? What if I don't put copyprotected files in my Kazaa share?
A lot of people use bitorrent, ftp, and usenet to violate copyright too... but that's hardly their 'purpose'.
For example, copying a few pages of a reference book for academic purposes is legal.
So is downloading a sample of a song for academic purposes.
The copiers are well suited to this purpose (in much the way that they are not well suited to wholesale copyright violation).
So if copiers become more efficient, full colour, hi-resolution scanners, that can save the output to a flash drive instead of paper -then- libraries couldn't install them because they'd be liable for copyright infringement? The fair use doctrine only applies to clumsy 70's technolgy that's slow, expensive, and inefficient to use and results in poor quality output? That would be a rather odd interpretation of the law.
As it stands, I often use my digital camera instead of photocopiers because it captures in colour, and to files, instead of in b/w to paper, and its cheaper too. At least one library I've visited had a colour scanner instead of a photocopier, and I think the reason we don't see more is that libraries are woefully underfunded and can't afford better copiers.
I'll play Devils Advocate here.
The argument is that the RIAA needs to prove *actual* harm (copying) took place, rather than just creating a significant potential for harm. However, there are many instances in law where creating the potential for harm is punishable, without actual harm.
Here are some examples. Speeding is illegal because excessive speed creates a much higher chance of damage, injury and death. It is not necessary to show actual damage, injury or death was caused by a speeding motorist to charge them. Releasing carcinogens into the environment is (should be?) illegal, even though we can't prove whether a specific case of cancer in an exposed individual would or would not have occured without the exposure. Distribution of child pornography is illegal because of the harm done to children in producing it, and because it may prompt "consumers" to harm children. In a given case of C.P. distribution, it is not necessary to demonstrate that a child was harmed in the production, that the production would not have occured without this instance of distribution, or that a user of the material harmed a child in response to viewing it.
It seems to me that punishing "potential harm" is justifiable under certain circumstances:
* If the harm is large but rare, and if the harm does occur, the at-fault person is not able to make full restitution. (Speeding would fit into this category.)
* If the harm is real, but it is very difficult to connect any instance of actual harm to a specific instance of increased-chance-of-causing-harm behaviour. (Releasing carcinogens fits into this category, as does any 'many small polluters' situation.)
The 'making available' theory clearly does not fall into the first justifiable category. Whether it falls into the second category is open to argument. There is at least a case to be made that it does - showing that a work was made available *and* that somebody took advantage of that availability is technically challenging, and would probably require allowing a level of snooping which we don't wish to allow anyone except police with a search warrent.
Having said that, I think that the decision on whether a "potential harm" should be punishable is in the domain of politics. Generally, it shouldn't be punishable unless a law specifically says it is. The RIAA may be legally wrong here, but that is not the same as saying a law which made them right would be a bad law.
IANAL.
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
Wow, I've never seen so many replies to an article by its own poster. It's like what would happen if Doc Ruby went to law school and then figured out how to get one of his submissions picked. Oh well, I guess he'll have to stay buddies with Roland for now...
Strange things are afoot at the Circle-K.
Interesting analogy, but a more appropriate one would be if the library set up numerous photocopiers, placed copies of each of the current best-selling novels upon each photocopier, then put a big sign above each saying "Press the green button to get a copy of novel: ZZZ"
;)
Why would the best sellers be on top them. My Kazaa library gives equal accessibility to everything in the folder. So the books will be in the stacks, and the copiers will be conveniently close.
And my p2p app doesn't send someone the complete song. It sends them only the specific blocks they request. For most users I only provide a few blocks, which is legal. Of course I don't stand there and decide when someone has had too many kilobytes worth and cut them off... but I could. So anyone who wanted to steal the song would have to get different pieces from different people... if only there were a p2p system that worked like this!
And would kazaa be any more legit if any one user could only share 30 seconds of any given song in any given day?
In your analogy, if the library had a vending machine that distributed crack cocaine as well as numerous legal substances, would NOT be liable for drug trafficking? After all, they just provided the option...you were the one who had to click the buttons.
Bad analagy. The differences between physical product and copying IP are way too numerous. There is no way I as a crack dealer can escape that fact that I've transferred physical product to you. Unless I'm going to argue that I put the crack in a vending machine, and the service I'm selling you is the enjoymet of just putting money in to see the machine hum and clunk. And then when you went and took the crack... dammit that was never part of the deal! I didn't sell you crack... you stole it from me!! Which would be absurd.
And there are lots of scenarios where you using my copy to make your own copy, or your own partial copy don't result in infringement. None of these apply to crack in a vending machine.
The making available argument is like blaming shop keepers for having goods available in their stores that could be readily stolen. It's not the theifs fault, look the store just had them sitting there!
I base this on my assumption that hubris will be the RIAA's Archilles, and they'll maintain a brute force via bullying stance up until the bitter end. Bullies only increase aggressiveness when threatened. Just my $0.02, take it with a grain of salt.
If I mod you up, it doesn't necessarily mean I agree with what you've said, sorry.
Yes, because copyright infringement = stealing, so if you are careless and put your music in the shared folder, someone might steal it, then you won't have it anymore. Right?
I am government man, come from the government. The government has sent me. -- G.I.R.
I wouldn't say that it's completely irrelevant; it might be a factor. "Distribute" in the Copyright Act requires that there be a sale or other transfer of ownership, or a license, lease, or lending. While arguably a 'lending' or an 'other transfer of ownership' might not require charging, sales, licenses, and leases would. So I can't say it's irrelevant.
Ray Beckerman +5 Insightful
Well then, goes to show why IANAL.
sic transit gloria mundi
I've been saying this for years - even pre-Napster - that you can't be liable for distributing if you aren't actually distributing, but I think in this instance file-sharers might hold off popping the champagne corks. The judge's concern seems to be more about facts than philosophy, i.e. whether or not distribution can take place in a passive sense isn't directly at issue here. What is instead is can a record company successfully sue a defendant for offering files merely by presenting screen shots of titles in a share folder? That other judges have missed this speaks volumes, but unless I'm mistaken, my careful Connecticut neighbor isn't saying a transfer has to be actively sent by the defendant, she's saying that in this particular case, the plaintiff hadn't met the burden that a transfer occurred at all.
- js.
Ray Beckerman +5 Insightful
Wow! I can't believe my above comment, which started with a +1 underrated, got pounded down with multiple offtopics. That's insane! I'm chuckling at the irony here: my missive to encourage people to spend their mod points on other comments in the discussion seems to have encouraged them to instead shut me up :P
The problem here is that I don't have to have the file to have it listed as present in a p2p service.. I don't have to have my tool configured to share.. I just have to be some dumbass that runs software my teenage son installed on my box when he wanted to impresses his girlfriend.
Now.. if you download a song off me... that's a whole different story.
Which is the whole point here.
-GiH
Waaay too earlier for that.
They'll need a few more cases to go one way or the other before the court will freeze a plaintiff from trying out his argument against a given defendant.
-GiH
Your big words must be a bitch.
Dewey, what part of this looks like authorities should be involved?
You are confusing the discussion of infringement of the reproduction right with the discussion of infringement of the distribution right. If you re-read the top of page 6 you will see that Judge Arterton has correctly rejected the RIAA's "making available" theory.
Ray Beckerman +5 Insightful
Right.
Show me any third-party candidate who has received a proportional amount of media attention as compared to the two leading parties, and who had any chance at winning the general election.
Running under the Libertarian ticket would have gotten Ron *LESS* coverage than he has gotten as a Republican candidate.
Ron himself has cited that running Republican gives him a better chance at being on the ballot and involved in the debates, something he wouldn't likely have gotten as a third-party candidate. Regardless, the parties are really meaningless labels and your implication that Republicans can't be against illegal wars or ineffective drug policy seems to communicate that you're just playing into the "team" mentality.
For the record, Ron HAS gotten quite a bit of support (like the thousands that showed up at the Austin Rally a couple of days ago or the activities happening in many local government GOP groups). But if you only pay attention to the big picture presented by the media, you'll never hear about it.
The only reason Ron hasn't gotten more support is because FOX, CNN, CBS, MSNBC, et al. have all spent the last YEAR keeping him and his message out of circulation or distorting it and marginalizing him -- even going so far as to actually say or imply that he had dropped out of the race for many many months now.
Anyone who doesn't realize this hasn't been paying attention and is being manipulated. For an eye-opener, check out some of the blackout events noted on The Ron Paul Timeline, which has been chronicalling it for some time.
It appears sanity is slowly starting to prevail, but it took a unacceptable amount of victims along the way to get there. Who is going to help those people who were abused in court before some intellligence started to appear?
Insert
The library analogy fails:
IANAL; I am a law student in Australia.
"But everyone should know everything." -markab
To be fair, only if you were "making it available"
I would argue that no transfer of ownership takes place, because the original copy that the sharer has remains in place.
Another weakness is that all that is transferred is a copy of the file, which in the case of most P2P transactions isn't a copy of the original CD file anyway but a compressed version of that file, so it is a moot point as to whether the copyrighted work itself is being shared.
Keep up the good work, Ray - I'm in the UK but follow your progress with great interest, especially with the ludicrous proposal over here that ISPs should disconnect users accused of file sharing merely on the recording industry's say-so.
One swallow does not a fellatrix make
You're wearing a miniskirt, how much more available can you get?
(Ie. "you're online, so you must be making files available!")
~REZ~ #43301. Who'd fake being me anyway?
1. It is easier to make fair use (i.e.
I understand what your saying, but I fail to see the relevance. To photocopy a book is a time consuming process, true, but what is the relevance. Are you asserting a device is non-infringing if its clumsy and inconvenient to use? If I build a p2p system that requires the user to manually specify which 30 second clip of a CD they want to sample, so that if they want the entire Cd they have to create 300 separate manual requests, would that really change anything?
(Given that it would be trivial for someone to write a script to automate sending those 300 requests and stringing the result back together.)
As to your 2nd and 3rd points...
In a world where almost everyone has a digital camera, almost every cellphone has a camera, and most of them do video too... and page scanners the size of a pen exist... how much longer will it be before one can ASSUME the average person walking into a library will have a servicable video/camera/scanner on their person. Within a decade will we have something that we can place on a stand, turn pages, and have it record video, scan pages, and possibly even OCR the pages in realtime? At which point copying a book is little more than the time it takes to flip through it.
Will one be accused of 'making available for copy' copy protected works, merely by leaving them in plain sight, where someone can pick them up, knowing that they probably will have the means on them to make a copy?
Even then books are still clumsier to work with... but for how long? if we ever get to the point where we own just a few book devices, that have say high resolution flexible displays perhaps 'printed' on actual paper so that it looks and feels just like a book. And files are copied and stored onto it for reading... what then?
We've already reached that point with music and pictures. And we're virtually there with video. The book *will* fall soon. (And already the p2p trade in books is incredibly high... I have a collections of hundreds of books. I still prefer to read them on paper; but the ability to search an entire library for a term, phrase, quote, etc is extremely handy. If they can get an ebook reader out that's enough like a real book, the era of the printed word will see the beginning of its end. That beginning of the end is already within sight.... technical manuals haven't been printed for years. Software ships with electronic manuals. ebooks are readily available. Amazon is fooling around with its Kindle...
Soon enough it will be easier to copy an entire book, than a selection of its pages. What happens then?
I guess you didn't read the top of page 6. I suggest you read it again.
Ray Beckerman +5 Insightful
Yep, this would fall under the copying and broadcast clauses instead.
Justice is the sheep getting arrested while an impartial judge declares the vote void.
Point 2 isn't really that different, if your connection has some absurd per MB charge (I've seen dorm connections that cost 7 cents per MB, the residents pooled their money to afford their warez downloads) that still doesn't make it legal, neither does getting a 128kb/sec MP3 file instead of PCM audio.
Justice is the sheep getting arrested while an impartial judge declares the vote void.
From the Australian case documentation you referenced:
> Many other examples may be found in the books of cases in which a declaration has been refused because it was
> claimed in relation to circumstances that had not occurred and might never happen.
It strikes me as similar to the judge's decision in the Connecticut case, since in that case the plaintiffs demanded relief on the basis of copying that had not been proven to occur and might never have occurred.
BTW, what was decided on the appeal and cross-appeal in the case you cited?
I'm not trying to be funny, really, but I thought that lying was just what lawyers do.
I've spent many hours at the courthouse being passed over for jury duty and listened to a number of lawyers. I look at the defendant sitting there. I look at the lawyers. I know that they all know what actually happened and whether or not this guy should be found guilty.
Yet I also know that at the end of the trial, the prosecutor is going to tell the jury "You should find this guy guilty." The defense attorney is going to say "You should find this guy not guilty." It's my opinion that it's extremely rare for the circumstances of a case to be sufficiently fuzzy that these contradictory statements arise from a genuine, intellectually honest disagreement. Rather, one of them is lying and everyone in the courtroom knows it.
My local District Attorney office (Harris County, Texas) has been caught in so much misconduct going back so far that I can't trust a thing they say. Defense attorneys openly admit that most of their clients are guilty. Generally, I wouldn't want to have dinner with either side.
Is there anything left to believe in? Do you seriously believe that lawyers should be disbarred for lying? Or are you just parroting an ossified, nay, *dead* principle as a way of playing to this virtual audience?
No, I don't mean to be rude. I'm sorry if I come off that way. But something just struck a nerve, thus this little rant.
If I had mod points right now, I would mod you down again for being 'off topic'. :P
I must admit, you have me at a disadvantage, as I am not a lawyer and am working from an amateur perspective.
And don't get me wrong; I'm a fan of the work you're doing, even though on a few points I think the line you take is a bit one-sided. (But then, I suppose that's as it should be...)
In any case, do you mean that you can envision a case where a person could engage in activity that is not infringing, but if he charged someone while engaging in otherwise-identical activity it would be infringing?
In any case, thanks for your response.
"it was a reasonable assumption that anyone making multiple copies of a book or vinyl album or even a CD was doing so to sell them. Copyright law is all about stopping that from happening"
I'd argue that copyright law isn't so much about keeping someone other than the copyright holder from making money, but rather it's about keeping someone other than the copyright holder from preventing the copyright holder from making money.
Anyhow, the idea of non-profit copyright violation isn't new or unique to digital media. Consider that physical distribution isn't the only way to infringe on a copyright. What about a free public performances, for example?
Copyright law DOES INFACT distinguish between copies sold to others versus those just given away.
One is a civil matter. The other is a FELONY.
A Pirate and a Puritan look the same on a balance sheet.
Ok, then perhaps you are luck enough to have no one in your professional
or private life is as computer illiterate as they can possibly get away
with (and still surf the web) and have absolutely no interest in doing
anything that might alter that level of ignorance.
You've got some Mac users that whine that "folders" are too complicated.
You are underestimating the potential ignorance of the random computer
user by a considerable amount.
If you wanted to, I could name names of people that are "dumb" enough to
fall into this situation by accident.
A Pirate and a Puritan look the same on a balance sheet.
Ray should be replying. He actually is a lawyer, and has gotten quite an education on this previously rather obscure dark corner of the law. He's the expert on this subject (the legal aspects), and we're not.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Every New York Country Lawyer post should be marked INFORMATIVE +1, because they are.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
All it takes is being willing to be bothered to look up the relevant law and read it.
A Pirate and a Puritan look the same on a balance sheet.
You seem to be reading my arguments to mean that library photocopiers cannot be used for copyright infringement. That is not my argument.
.10c/page. "
My argument is that (1) library photocopiers are not, as the previous poster suggests, the ideal setup for copyright infringement, and (2) they in fact serve a different significant purpose that is completely legal. This is in contrast to a share containing copyrighted material on a filesharing service, which clearly and ideally serves the purpose of infringing copyright on that material.
"Let's say you decide to copy an entire book using library photocopiers, at $0.10 per page. You'll typically pay more than a new copy would cost,
True in some cases, not in others. Kids books like "The Pigeon Finds a Hot Dog!" is some $12.00. Probably cost under $2.00 to copy at
That's why I said "typically". Yes, there are some works you could copy, and that would be illegal. That's not what the copiers are set up for, though.
Then again, while kids books are less affected by this previous point (about cost of the copy), they're more affected by the next one (about the quality of the copy), since they tend to have a lot of color. (Perhaps your library has color copiers, but if so I bet they charge more than $0.10 per color page...)
"and the copy you get will be pretty low quality
That doesn't make them somehow legal. "
No, but it again calls into question the claim that the library has given you the perfect setup to violate copyright.
"You'll also need quite a bit of time for this project, and may be told to stop and/or kicked out of the library before you can complete it
Only if i were to attempt to copy the entire library "
You must be more patient than I am if you don't consider the time to copy each page of a book (without destroying the book) to be "quite a bit of time". Again it depends on the specific book, of course; and again that's beside the point.
"(You might also notice signs around the copier that put you on notice that you're supposed to obey copyright law, though that detail depends on the library.)
It wouldn't be hard to add to the kazaa protocal a message that says 'please respect copyright' when someone connects. Would that some change anything? "
That alone would not change anything. I mentioned the signs as an indicator of the library's poilcy. If kazaa had a policy of policing against copyright infringement, that might change things; and a message like you suggest would be a good indicator to go along with such a policy. But simply printing the message with no real anti-infringement policy behind it would have no meaning.
" What if I put copywritten files in there so that someone who stepped on their copy of the CD can download a new copy from me? "
What if I yell my credit card number across the store so that the clerk can run my transaction? Don't be absurd.
" Or to save people from having to tediously rip their own CD's? "
You can certainly try to be coy, and that's why we have juries. If you can fool 12 people into believing you're just helping people legally format-shift songs they purchased, more power to you. If I'm on that jury, good luck convincing me that the preponderance of evidence suggests such when you have neither the motive nor the means to ensure that's how the share is being accessed. In fact, good luck convincing me that downloading the song is "less tedious" than ripping it.
" What if I don't put copyprotected files in my Kazaa share? "
Then that has nothing to do with the discussion at hand. I'm talking about the purpose of a kazaa share that contains copyrighted materials. I appologize if I wasn't explicit enough in my previous message, but frankly I would've expected you to pick it up from context.
"For example, copying a few pages of a reference book for academic purposes is legal.
Your access to someone's p2p share might have some of the same limitations as a library copier (cost of download, for example), and indeed that doesn't make it legal. Your university might also have an anti-piracy policy to which your access to someone's p2p share would be subject. But those things are not characteristic of the p2p share itself.
The limits I talked about are "built in" to the setup of a library's copier (not merely a small population's access to said copier). That doesn't mean that every possible use of such a copier is legal; but it is relevant in identifying the resonable uses and purposes of the copier. The same cannot be said for a p2p share.
The law just isn't as black-and-white or as simple on this point as a lot of people think it "should" be. Two things "can" be used to infringe copyright -- that's not enough to say that they're equivalent in the eyes of the law. Fuzzy concepts like "significant non-infringing uses" can make a difference.
If you say "filesharing networks have significant non-infringing uses", I agree; I think Napster got a raw deal. But if you say "placement of a copyrighted work in a p2p share has significant non-infringing uses", I disagree, and that's really the subject at hand.
Your assessment of the people I know is incorrect.
I know plenty of computer-illiterate people. Yet when it comes to Kazaa, I know two kinds of people:
1) Those who have never heard of it (and do not run it)
2) Those who know what it is; they may or may not run it, but they know what it does.
It is possible that it runs on your computer even though you're in group (1) because someone else put it there; that would be a matter for the jury (or, in a case with no jury, the judge I suppose) to sort out. If the jury consists of people like me (who think you have a certain responsibility for a machine you place on the Internet), don't expect a surplus of sympathy.
Meanwhile, your offer to "name names" is, as you assuredly already know, worthless since your claim would be unverifiable.
All it takes is being willing to be bothered to look up the relevant law and read it.
Well then, goes to show how much time I'm willing to be bothered to spend on Slashdot posts.
sic transit gloria mundi
All of the examples you mention are criminal offenses. Some are felonies, some misdemeanors, but they are such fundamental principles that they don't necessarily have to have evidence of actual damages...you are committing offenses "against the dignity of the people of (fill in local, state, or federal government)." The standards of proof are higher in criminal cases, but the simple attempt to commit a crime can be sufficient grounds for conviction, even if law enforcement manages to foil the plot before actual harm takes place.
In a tort (civil) case, as the RIAA's cases all are, the plaintiff theoretically has to provide evidence of damages (I say theoretically, since the RIAA has had cases decided in its favor without doing so, pursuing statutory damages on claims of "making available" without providing any evidence of actual infringement is their way of avoiding this). Once damages have been established, there may be a punitive element added to just smack the perpetrator down more and teach him/her a lesson, or other solutions to remedy the situation.
IANAL, but I'm a bit disgusted by the whole mess-- you're apparently not the only one who confuses tort wrongs with criminal ones. The RIAA is apparently able to fool a lot of people, including judges, into not forcing them to provide evidence of actual, specific infringement actions that would warrant a judgement for statutory damages in their favor, saying the intent is sufficient as it would be in a criminal case. Kudos to judges who are competent enough to see through it.
One thing I wonder about are the RIAA stormtroopers who raid homes and seize hard drives...are they simply PIs who convince the accused to cooperate, or do judges actually sign search warrants that allow police to seize evidence on behalf of a tort plaintiff? I know under some circumstances, when a tort type of wrong is egregious enough to become a criminal offense, the government will step in; but in these cases, there don't appear to be government prosecutors involved, and the RIAA seeks only monetary damages as far as I've heard, not fines that are to be paid to the government. That situation just seems wrong.
"nd P2P sharing doesn't transfer ownership, it effectively multiplies ownership."
I think you're stretching a bit on that point; I could make the same claim about using a dual tape deck to copy a cassette.
This (along with another slashdot story I happened to read today) got me thinking, though...
If your argument is valid, then GPLv2 is worthless. (It only imposes restrictions on what I must do if I "distribute" copies of a covered program; so it would be ok for me to use a p2p network to make my binary-only modifications available? Or for that matter, nothing in your logic would exclude me using a website to make the modifications available...)
Don't get me wrong; the possible negative consequences of your argument do not stand as a proof against your argument. But I certainly hope you're being consistant in how you interpret copyright law, and not using one definition when you talk about music and a different one when you talk about software.
To be fair, that may be one reason why GPLv3 replaces "distribute" with "propagate", which it defines as more or less any action that would be infringing if you didn't have copyright-holder permission.
Which points out that even if p2p sharing of copyrighted music isn't "distribution", that doesn't mean it's necessarily non-infringing. Ultimately, if its legal to use kazaa to share copyrighted music, then it's equally legal to use similar means to share binary-only modifications to a GPLv3-covered program.
Just something you might want to think about...
No, the judge is saying the 'making available' theory is bogus. They would have to prove actual copying or actual distributions.
This is big because -- you guessed it -- the RIAA has no evidence that the defendant did any copying or engaged in any actual distributions.
Ray Beckerman +5 Insightful
" Or to save people from having to tediously rip their own CD's? "
You can certainly try to be coy, and that's why we have juries. If you can fool 12 people into believing you're just helping people legally format-shift songs they purchased, more power to you. If I'm on that jury, good luck convincing me that the preponderance of evidence suggests such when you have neither the motive nor the means to ensure that's how the share is being accessed.
What is your theory of motive? That I want to anonymously and illegally distribute copy protected music to random strangers on the internet at no benefit whatsoever to myself 1000s of times? Their isn't even a thrill. So why exactly would I be motivated to do that?
For most people the reason music ends up in their shared folder is that its the path of least resistance. They might not really be aware they are sharing; they might not really care. They might even think of it as a 'pay it forward' karma thing.
Me, I fall into category c. Someone was nice enough share their copy with me, so I return the favor to network and share it back a few times over before pulling it out of the shared folder. To me that's akin to going to a music forum with my ipod and displaying the list of songs I listened to in the last month. If someone asks for a copy of one of the songs I'll make it. And I feel that qualifies as fair use. I'm only making a small number of copies.
Sure I concede in aggregate that the p2p scene results in massive infringement. But that's still an important distinction. One guy sharing a joint at a concert with the strangers around him is not a drug trafficker. And if growing and sharing weed was as effortless as sharing music the DEA would be in the same position as the RIAA. Personal use growers who give it away for free to the people around them are still just people, not 'drug lords', even if there are 300 million of them and they're moving more weed in aggregate than organized traffickers ever could have.
That aside, I agree you've poked some valid holes in my library analagy. However I don't think hypothesizing about a future library is not useful. What happens to libraries when books become as easy to copy as music? Whether our cell phone camera's will be able to make a perfect scan of each page just by flipping the pages in front of it... or books will make the transition to electronic form.
In fact, good luck convincing me that downloading the song is "less tedious" than ripping it.
I have a number of CDs that were a pain to rip because of the 'copy protection features'. For them, downloading a version was less hassle than overcoming the encryption. I have a large number of records and tapes, which ripping is much more of a hassle. I also have a number of scratched CDs. I know of one person who has a whole stack of CDs that have 'deteriorated'...
I'd say typical stated motives are some combination of
... so are you prepared to pay civil fines for your beliefs on this?
(1) belief that the music, being mere information, "wants to be free"
(2) willingness or desire to participate in a community that makes music available for free (much like your "pay it forward" theory
Neither of these have much to do with whether the act is legal, though. Whether you think the music "should be" free or not, the question is whether the law says it is free. You can lobby for change. You can go the "civil disobediance" route, but a key element of civil disobediance is that you accept the legal and social consequences of your action
You may believe that making one or two copies is fair use; I disagree, and I'm pretty sure both the written law and the case law disagree with you as well. Fair use is a complicated topic, though, so I don't expect either of us to commit the resources to "prove" our point of view to the other.
A person who passes a joint at a concert isn't a trafficker, but he is breaking drug laws (if he's in the US, at least). A person who makes a few copies of a copyrighted work and propagates them isn't a kingpin of a piracy ring, but he is a copyright infringer.
"What happens to libraries when books become as easy to copy as music?"
It's a fair question, though whether they can provide photocopiers may be the least of their worries. For that matter, what will happen to book stores?
You might look at the current music and video situation as a dry run for the impact of easy-to-copy books. With books, it might be worse, though. Opinions vary on whether musicians "would" write music without profit motive. Many would, because it's a form of artistic expression -- in fact, while there might be less music, the field would probably be higher quality if nobody doing it was just "in it for the money". Can the same be said for all types of book, though? Probably not.
Remember that while modern media companies use copyright law to control markets and maximize profits, this is not the purpose of copyright. Copyright is meant to solve a simple problem -- "How do we compensate creators of art, literature, etc.?" -- in a way that aligns costs with benefits. It was never perfect, and in the modern world it's showing its age.
Ultimately I think the way people look at the music, video, and literature markets is going to have to change. Enforced scarcity is becoming an impossibility. For now, though, copyright is a key component that helps those markets tick. The first objective is to restore balance to copyright law (which is not the same thing as ignoring or nullifying it); creating a new type of market is a longer-term necessity.
You may believe that making one or two copies is fair use; I disagree, and I'm pretty sure both the written law and the case law disagree with you as well. Fair use is a complicated topic, though, so I don't expect either of us to commit the resources to "prove" our point of view to the other.
... so are you prepared to pay civil fines for your beliefs on this?
Section 1008 of the Copyright Statute:
"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
You aren't supposed to be able to charge someone based on noncommercial use of a device or medium (e.g. computer/hard disk/internet) to make digital musical recordings.
This is why the RIAA doesn't even try to go after people downloading copies for personal use. And their leg to even go after someone uploading non-commercial copies is pretty weak.
From what I understand, they usually try to mix in that a sharer is in violation of their -broadcast- rights, not -copy- rights. (Copyright of course is more is more than just 'copying' its also broadcasting, public performance & display rights, derivative works, the right to assign licensees, etc.) One reason the RIAA has gotten away without having to even prove copies were actually made when charging people, is because in their legal theory their case is more about broadcasting and and public display them about actually making non-commercial copies.
Making the non-commercial copies is outright legal, nevermind a 'fair use'.
If I let a few people in an online community make a copy for non-commercial purposes is that fair use? I think its at the very least a very grey area. If I make 100's or 1000's of copies I think it becomes less grey but 5 or 6?
A person who passes a joint at a concert isn't a trafficker, but he is breaking drug laws (if he's in the US, at least). A person who makes a few copies of a copyrighted work and propagates them isn't a kingpin of a piracy ring, but he is a copyright infringer.
Fair comment. But the point is that he's not a drug trafficker. He shouldn't be charged as one. Which brings me back to this:
You can go the "civil disobediance" route, but a key element of civil disobediance is that you accept the legal and social consequences of your action
Just as when I jaywalk, Yes. Absolutely. I am willing to take responsibility for making 5 or 6 unauthorized copies of a given track for non-commercial purposes, provided the RIAA can identity the track and prove those 5-6 copies were actually made and that I am personal responsible for it. (I'm not going to do their job for them, any more than I am going to self-report myself to the police when I jaywalk when there aren't any cars in sight.)
That said, am I willing to be charged as a 'kingpin of a piracy ring'? Of course not. If I smoke dope at a concernt, something that is known to be illegal I would be prepared to accept the punishment for the crime I committed, having the drugs confiscated and a misdemeaner of carrying less than 1oz of a controlled substance without a permit... or whatever it is... but I'm not willing to be tried and/or imprisoned for life for corrupt enterprise and drug trafficking.
The RIAA lawsuits are improper; they have no business even charging someone like me for millions in damages. The damages are in the 10s of dollars, not the 10's of millions.
Ultimately I think the way people look at the music, video, and literature markets is going to have to change. Enforced scarcity is becoming an impossibility. For now, though, copyright is a key component that helps those markets tick. The first objective is to restore balance to copyright law (whic
Spoken as a true New Yorker.
-molo
Using your sig line to advertise for friends is lame.
Actually, I found it amusing, not annoying. I enjoy NYCL's stuff, and was just taking a cheap shot at Doc and Roland. I thought I showed up too late for anybody to even read it, what with the Karma snipers around here...
Strange things are afoot at the Circle-K.
Ray Beckerman +5 Insightful
You've taken sec 1008 out of context. I doubt a PC can meet the definition (in sec. 1001) of a "digital audio recording device" (or in any event that it's acting in that capacity when being used to download a music file), nor that downloading a copy over a p2p network would qualify as "making [a] digital musical recording".
The point of sec 1008 is that I can record music off the radio, etc., for my own personal use. It is not intended to suggest that digital music files aren't subject to copy restrictions.
Even if you were right that the downloading party were legally in the clear, that would have nothing at all to do with the legal standing of the person who made the track available for download.
In any event, noncommercial copying is not automatically legal. Specific uses -- which tend to be non-commercial -- are legal under various exemptions, of which fair use is the most-often cited.
"Fair comment. But the point is that he's not a drug trafficker. He shouldn't be charged as one."
If you're saying that the offense of a p2p sharer should carry a lesser penalty than would the offense of a big-time boot-legger, I agree. I never said otherwise. What I said is, it's still copyright infringement.
In the one p2p case I'm aware of that went to a jury, the judgement was too high up the range of possible penalties IMO. That doesn't mean I don't think she was guilty, though.
"I'm a big Alice Cooper fan for example, have been forever. If he wanted to release a new album and wanted to make 1,000,000 from it, I'd pledge $5 to the cause. If 200,000 other like minded individuals around the globe came forward, the 1,000,000 bounty would be met and it would be released"
You should take a look at SellABand.
And yes, that's the sort of thing I'm talking about when I say the market has to change; but it's not quite that simple and, at least for now, copyright is still a necessary piece of the puzzle.
Reducing copyright term to reasonable levels and ensuring that penalties are proportional to offenses are both necessary in the immediate term; that's what I mean by "restore balance".
By contrast, removing the limited monopoly of copyright entirely -- such as by allowing free p2p sharing of tracks -- is a longer-term consideration that cannot simply be thrust on the market as it exists today.
You've taken sec 1008 out of context. I doubt a PC can meet the definition (in sec. 1001) of a "digital audio recording device" (or in any event that it's acting in that capacity when being used to download a music file), nor that downloading a copy over a p2p network would qualify as "making [a] digital musical recording".
I disagree. Consider iPods, iTunes, and the iTunes music store... I don't think anyone reasonable is going to dispute that the computer, the hard drive they are stored on, and the files themselves aren't going to qualify as:
Digital audio playback devices, digital audio recording devices, and digital audio recordings respectively. Sure they aren't -strictly- within the definitions, but then, take medium:
A "digital audio recording medium" is any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device."
(Emphasis mine.) Even Recordable CD's aren't strictly within that definition as they are not primarily marketed nor most commonly used by consumers for the purpose of making digital audio copied recordings. Today they are primarily used for data, consumers are most commonly using flash based devices. (ipods, zunes, sansas, etc, etc...) CD's are mostly for other data these days.
In the mordern world hard drives, flash drives, and networks are how the consumer makes 'digital audio recordings'; and in the case of things like itunes, its how the device and media use to sell and distribute them too.
There is no meaningful difference between making a "digital audio recording" of a music track and "copying a file".
When I rip a CD I'm copying a file. When I buy an itunes song, I'm copying a file.
The point of sec 1008 is that I can record music off the radio, etc., for my own personal use.
Excellent point about radio. I can record music off radio for personal use legally. My cable company delivers FM stations via the coax wire and I can record music off that too for personal use. And then there's this thing called "internet radio" and clearly I should be able to record music off of that for personal use too. Its just another medium on which to deliver digital audio.
Now if I record internet radio using a computer, and saving the stream to disk. Well... that's pretty much identical to copying a file. No, scratch that, not 'pretty much'. That's simply copying the file.
And that was my point earlier... the RIAA is essentially treating p2p sharers like unauthorized radio stations -- as BROADCASTERS, not as 'file copiers'. The distiction on the internet seems to be semantics, since broadcasting on the internet *is* done by making copies... but that's the hair they are splitting.
And charging us for being an unauthorized broadcaster is on par with charging someone sharing a joint with drug trafficking... which we agree on.
It is not intended to suggest that digital music files aren't subject to copy restrictions.
What exactly -is- it intended to suggest? I can use consumer equipment to make personal use copies. As long as I don't step outside that, any personal use copies I make are legal.
It just so happens consumer grade equipment has reached the point that it can make hundreds of perfect copies an hour from an original 10,000 miles away with half a dozen mouse clicks. The stuff of science fiction when this law was written.
I agree the law never anticipated that consumer equipement would reach a level of sophistication that making copies would be trivial, effortless, and cost practically nothing, so that an average consumer can actually run a non-profit digital recording distribution center for non-commercial purposes at virtually no cost -- and thereby render the entire music replication/distribution industry entirely redundant. But it has. And copyright must be rewritten so that artist compensation do
"In the mordern world ..."
The current definitions are from the DMCA. You might argue a lot of things, but you can't argue that they're out of date.
"hard drives, flash drives, and networks are how the consumer makes 'digital audio recordings'"
Based on the definitions used in the law, I disagree. Those are the tools used to copy a digital music recording, which is not the same thing.
"When I rip a CD I'm copying a file."
Actually, no, you're not. At least not with typical consumer equipment. A rip is not a direct copy, though today's hardware is good enough I doubt anyone can tell the difference.
I also don't know that it would qualify as "making a digital music recording".
"When I buy an itunes song, I'm copying a file."
When you buy an iTunes song, you are copying a file; but what makes you think you're "making a digital music recording" per the law's meaning?
"I can use consumer equipment to make personal use copies"
No, that is not what that section of the law says.
"It just so happens consumer grade equipment has reached the point that it can make hundreds of perfect copies an hour from an original 10,000 miles away with half a dozen mouse clicks. The stuff of science fiction when this law was written"
Again, you're over-estimating the age of the law in question (or else under-estimating the age of the Internet, I don't know which). Much of the DMCA was written speciically because of the technologies we're discussing.
However, it was written by Congressmen; not programmers, not geeks and nerds, nobody from the demographics I'm assuming apply to you, nor from the demographics that apply to me. What it means and what it appears to you to mean are not necessariy going to be the same thing, not because it was written for a different time, but because it was written from a different perspective.
"By contrast, removing the limited monopoly of copyright entirely -- such as by allowing free p2p sharing of tracks -- is a longer-term consideration that cannot simply be thrust on the market as it exists today.
Technology has *already* done this"
No, it hasn't. The limited monopoly is a legal construct and it is still in place, the ease with which it can be violated notwithstanding. The monopoly was always intended to apply even to those who had the technological means to compete against it; that's why a law was needed in the first place.
"When the printing press arrived and the scribes were put out of work, we didn't try and protect them and artificially suppress the press to preserve their business model "
Poor analogy for three major reasons.
1) The scribes -- the ones who could no longer be compensated due to the press -- were no longer a key provider of anything useful in the supply chain. The artists -- whom copyright law is designed to compensate -- are still required to make music.
2) To prop up scribes would've required a new legal infrastructure. Not temporary maintenance and phase-out of an existing structure -- a new structure.
3) Copyright isn't about propping up a business model; it's a standing method of solving an economic problem recognized by society, albeit a method that is aging and that will eventually fail. Contrary to your belief, it has not failed yet.
Again, copyright and "the RIAA" aren't the same thing. The RIAA is about protecting a business model. Copyright is not.
So overall, I'd say the analogy has no relation beyond surface appearances to the situation at hand. I'd also say it appears as though you're imagining that you can move the whole world from "where we are" to "where you think we should be" overnight. Sorry to tell you, that approach leads only to disasters.
(As an aside, it also happens to be bad strategy. It polarizes the debate, creates conflict in which both sides suffer unnecessary harm, and usually delays or
Sorry to reply twice, but I meant to cover one other point and forgot to include it in the first reply:
"A "digital audio recording medium" is any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device."
(Emphasis mine.) Even Recordable CD's aren't strictly within that definition"
Partially correct. A general-purpose CDR is deliberately not within the definition. There are special "music only" CDR's, which do fit the definition of a digital audio recording medium. What makes them special? Well, they're physically the same product; but they're marketed for the purpose of recording digital music. (Also, the disc info seen by devices that read the disc identify it as a "music only" disc, so that consumer CD recorders will accept them.)
The "music only" CDR's are also more expensive. Why more expensive? Because you pay a fee that lands in the RIAA's pocket for each disc. So it's not too surprising if the law treats these "special" discs differently than general-purpose CDR's.
So again, you can argue that a lot of things are wrong with the definitions, but the problem isn't that they're outdated; they're actually quite up-to-date, and they do mean what they say.
The distinction may seem insane from a consumer perspective, but it is in the law on purpose. Congress does that kind of thing quite a bit. (Go read up on the various classifications of light bulb if you'd like another fine example of your tax dollars at work.)
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
> BTW, what was decided on the appeal and cross-appeal in the case you cited?
High Court case, no further appeals possible, precedent binding on all Australian courts.
"But everyone should know everything." -markab