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Google Asks Court Not To Enjoin ReDigi
NewYorkCountryLawyer writes "Google has sought leave to submit an amicus curiae brief against Capitol Records' preliminary injunction motion in Capitol Records v. ReDigi. In their letter seeking pre-motion conference or permission to file (PDF) Google argued that '[t]he continued vitality of the cloud computing industry — which constituted an estimated 41 billion dollar global market in 2010 — depends in large part on a few key legal principles that the preliminary injunction motion implicates.' Among them, Google argued, is the fact that mp3 files either are not 'material objects' and therefore not subject to the distribution right articulated in 17 USC 106(3) for 'copies and phonorecords,' or they are material objects and therefore subject to the 'first sale' exception to the distribution right articulated in 17 USC 109, but they can't be — as Capitol Records contends — material objects under one and not the other."
But this appears to be a good thing logically.
Help, I'm so confused, do I hate or like Google today?
AKA "You can't have your cake and eat it too."
THE SOFTWARE, IT NO WORKY!!!
Would someone please recap this article for me?
Whats the statement?
Get 'em NYCL!
" Google argued that '[t]he continued vitality of the cloud computing industry—which constituted an estimated $41 billion dollar global market in 2010"
We certainly can't let the law get in way of making money.
Or they wouldn't be MAFIAA, would they?
Muchas Gracias, Señor Edward Snowden !
Real lawyers can clarify, but AFAIK, two separate courts in separate decisions can decide that A is true, and that A is not true.
Is there any law or principle that the "system" has to resolve logical errors like this?
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
but they can't be material objects under one and not the other
Or could they ?
We already have demonstrated wave-particle duality at macroscopic scale. We could also understand that phonorecords are indeed dual objects, both material and non-material, depending on the way we consider them.
I foresee a new law of physics where those objects tend to please their copyright owners and thus switch from one concept to another accordingly.
You're probably thinking of a circuit split. These can be resolved if the Supreme Court decides to take a case that involves a circuit split; otherwise, lower courts would have to abide by the authority of their particular circuit.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
And the media industry has millions in campaign donations to MAKE them both.
SJW: Someone who has run out of real oppression, and has to fake it.
At last, a big player plays the doctrine of first sale-card. This just got interesting. Google is neither pure good nor evil, they are sort of chaotic neutral, i.e. they serve their own purposes, but once in a while they dance on the table too.
Can I light a sig ?
The final principle concerns the interplay between two provisions of the Copyright Act which, by their plain language, are limited to material objects: the distribution right, Section 106(3), and the first sale doctrine, Section 109. Both provisions deal with copies and phonorecords, which are material objects in which copyrighted works are fixed.
But 17 USC 106(3) just says:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
...(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
Now, Google could say that "copies" implies a material object, but it's certainly not there in the plain language. In fact, 17 USC 106(6) goes on to discuss digital audio transmissions, and doesn't distinguish them as being non-material.
Google is correct that the Capitol Records brief is inconsistent:
The present motion argues that the first sale doctrine—which permits the owner of a lawfully-made copy or phonorecord to sell it without needing the copyright owner’s permission—cannot apply to this case because no material objects change hands. But it also argues that ReDigi infringes Capitol’s exclusive right to “distribute copies or phonorecords,” despite its admission that no material objects are distributed. Either both provisions apply, and ReDigi’s service may be protected by the first sale doctrine, or neither applies, and ReDigi’s service does not infringe the distribution right.
But they should be focusing on that inconsistency, rather than claiming the statute says something it doesn't. It almost seems like Google is trying to argue that First Sale doesn't apply, because "copies are not material objects".
First posts are NOT material objects.
I'm a big fan of you, NewYorkCountryLawyer, but you really should have disclosed in the summary that you are currently counsel for the defendant, ReDigi, in this court case.
Anyway, I'm glad to hear that you seem to have found a heavy-weight ally in this case.
... if Capitol Records hasn't become "immaterial".
How may times have you heard commercials saying "Own it on DVD today!" or "Own it on Blu-ray Today!" ? Since they mention 'it', referring to the advertised movie, and the medium, the DVD or the blu-ray disk, they're saying that the ownership is for the movie, not the medium. Note also that they say 'OWN' it, not 'license' it.
Tiller's Rule: Never use a word in written form that you've only heard and never read. You will end up looking foolish.
At the time the mp3 is saved on a disk or flash memory, it is materialized. Even if it shares the device with other files, it really has a some sectors or cells for itself. Just as some works were carved on wax or are pressed as vinyl and CD.
However, the work is communicated via non-material means.
We can say that the mp3 is sold as a non material stream, then materialized by the buyer. (I don't refer here to music streaming, but to the point that any download is a byte stream)
There was a discussion on /. a while back regarding this....saying the entire music industry is worth rougthly $10bn US.
Google could pony up and buy Capitol Records completely, release all copyrights held, then break up and sell what worthless assets it has left in a fire sale. While they probably have the capability to purchase the entire industry, they only need to stop there with Capitol Records aquisition.
The rest of the industry will STFU and play nice.
In mechanical licensing - which is the fee due to the composer and lyricist, a "Permanent Digital Download" is treated nearly identically to a track on a CD or a song recorded to a record or tape. The fee is set by statute (http://www.copyright.gov/carp/m200a.pdf), though if you are going to produce a lot of copies, you can negotiate directly with the owners or through HFA (Harry Fox Agency) for those it represents.
This strikes directly to the heart of the matter: if the copyright holders are getting paid the same amount for a CD as an MP3, then the rights of the end user should be the same. When it is a "permanent" digital download, it's a manifestation which you own forever and should be transferable.
This actually matters to me quite a bit, as I am involved in the distribution of very low quantity recordings (~120 copies at a time) on CD. I'd like to switch over to digital, as it would reduce my costs and the time spent burning discs. I only use these on rare occasions, so it would be nice to "collect" the MP3s and put them back in the library for later use/redistribution. I'll be interested to see what comes out of this.
Is it just my observation, or are there way too many stupid people in the world?
From NYCL's site: http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/capitol_redigi_120201OrderDenyGoogleMotionLeaveFileAmicus.pdf
Word game?
Fine, but they haven't paid yet for an updated law yet. They should have to bear the expense or make credit arrangements with the court or legislators before it sides with them. Why would someone support them prior to securing payment? Talk is cheap.
That adds attrition considerations to the strategic balance. The media has millions in campaign donations now, but let them start spending it and then we'll see how things stand after a few rounds of this.
So, it appears that Google is claiming that Capital Records either sold a copy of the music or they actually sold their copyright to the music. Is that how I am supposed to read this?
If first sale does not apply than Capitol Records must have sold their copyright. If they sold the copyright, then we can ignore this whole battle because they have no right to sue. Now, the owners can distribute the work as copies instead because they are the copyright holder. I like the direction Google is taking this.
I see you're all dazzled by the big words.
Google is saying, since cloud computing works on the premise that one file is stored and access is given based on license, then Capitol cannot argue that they are material goods. If they were material goods, they would be subject to first sale doctrine and the lawsuit falls apart.
If they are not material goods, the plaintiffs must argue that the license is non-transferable and not subject to sale.
This is what I've been saying for years regarding the whole piracy debate for music. Is it a product or a license. The RIAA seems to want both, but only when it suits them. There are not a lot of legal precedents regarding this matter.
They're using their grammar skills there.
Which ensured both that Hitler got the credit, that the USA got a cut of the improvements in Nazi Germany, and that the War Machine was fully funded.
No wonder the USA didn't want to start blowing Germany up. That's their investment shooting at civilians! No worries!
So you're a music pirate eh lad?
They're using their grammar skills there.
Most humans with English as at least a second language would be saying:
Google is claiming that either Capital Records sold a copy of the music as a material object or they sold a copy of the music as an immaterial object.
Nobody other than you mentioned the copyrights being sold.
So you're a music pirate eh lad?
On what basis do you jump to that conclusion? More likely it's recordings of his own material that he sells at his performances. There are a lot of talented people around who don't need the traditional gate keepers or a huge capital investment to produce and distribute their material. Welcome to the 21st century. Cheers ;)
Is it?
You can't have your cake and download it too.
anyone?
##########
> avere la botte piena e la moglie ubriaca
I'll take a chance that you will check your comments, and that you know cinema de italia.
Sometime around 1990 to 1995, perhpas earlier, I saw an Italian film that was interesting but I didn't have a chance to see more than a few scenes. Perhaps you can help me find the name of it.
I remember one striking scene. A teenage boy, maybe 16 is desperately looking for work. He comes across an old widowed(?) female shop keeper. She's in her 50s, she's a cranky mean woman, a bully to her workers, ugly, fat and old. The handsome blond boy comes in looking for work, begging for work, she angrily cruelly orders him to leave. However, when the boy hears that strong backbreaking work and strong arms are needed, a man is needed not a boy like him, the boy lifts the old bitter woman and carries her around a few feet in the shop, warehouse. The striking thing is that the woman becomes extremely sexually aroused at being manhandled that when the boy puts her down she rips her blouse open, and proceeds to shove her huge breasts into the boys face, urging him to take her then and there. He is confused, is not interested and when the moment passes the old bitter large bosomed crone slaps the boy hard across the face and sends him away.
The scene was so incongruous that I have always remembered this film, and wondered what the heck the film must have been about. Any idea what this Italian language film is, is called? As I mentioned the film must be 20 years old, give or take 5 years. KFC
No, they aren't. Corporations aren't collections of people. They are abstract collections of rights and privileges with respect to property that are assigned to certain people through law.
The problem with that idea is that among the collection of rights that make up the corporate form is the legally enforceable right of shareholders to demand that the corporation, through its management, without exception acts to maximize their realization of their shared interests. In the case of widely held public corporations, that shared interest is almost exclusively financial -- so, to the extent that acting ethically in even the slightest bit reduces expected returns compared to a less ethical course of action, there is not only a reason to leave ethics at the door, but a legal mandate to do so.