Slashdot Mirror
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."
AKA "You can't have your cake and eat it too."
THE SOFTWARE, IT NO WORKY!!!
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.
But this appears to be a good thing logically.
Help, I'm so confused, do I hate or like Google today?
Today you like them. Tomorrow is a new day.
Or they wouldn't be MAFIAA, would they?
Muchas Gracias, Señor Edward Snowden !
google asks the court to decide wether:
- files (eg mp3) are material objects which can be resold etc or:
- files are not material and therefore the laws regarding those are invalid.
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.
I wouldn't say I like or dislike them (although they seem to be trying to make themselves pretty unlikable these days). But I have always been wary of Google because they gather so much data.
So I just don't use them.
And no, it's not exactly a good thing logically. It's twisting words (i.e. lawyers doing lawyer things and picking pedantic holes in texts to get around the clear intention of the law).
What'll happen if this somehow gets through and they're not careful is the recording industry will say "fine, you be jerks, we'll be jerks back. These are now computer programs and subject to paragraph* 109 (b)(4). Have a nice day".
* Why on earth can't I use the paragraph symbol?
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.
Or, to look at it another way, sometimes even my enemy's interests align with my own.
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".
Or, to look at it another way, sometimes even my enemy's interests align with my own.
Sometimes. Hard to imagine that ever happening with Capitol Records tho'.
But this appears to be a good thing logically.
Help, I'm so confused, do I hate or like Google today?
They have vested interests in cloud computing.
There is no "good" or "evil", just greed, biases and stubbornness.
Bad people can do good things. Good people can do bad things. Hitler turned Germany from post-WWI depression into economic powerhouse in 20 years.
And stop anthropomorphising corporations; They have no morality. A good corporation is one which makes the most money for its shareholders.
Finally had enough. Come see us over at https://soylentnews.org/
First posts are NOT material objects.
IANAL, but in a recent story, we heard that Capital Records was suing ReDigi, a service that allows people to re-sell used MP3s, claiming that they such resale is not permitted by law. Google wants to put forth an argument that it is.
The exclusive rights a copyright holder has (which are enumerated in 17 USC 106) include the exclusive right to make and distribute "copies" and "phonorecords". There are some other exclusive rights such as making derivative works and public performance, but they are not relevant here. But under 17 USC 109, the owner of a lawfully made "copy" or "phonorecord" is permitted to sell that copy or phonorecord, without any authority from the copyright owner. Google argues that either owners of MP3s have this resale right, or else MP3s are considered neither of these things and their creation and distribution is not restricted by law at all, because the same terms are used in both sections of the law.
In 17 USC 101 both of these words are defined as "material objects" of some sort. Capitol apparently argued that MP3s are not material objects and thus not subject to the right of resale, but Google pointed out that this same argument would make the actions of copying and distributing MP3s not fall under the restrictions of copyright at all.
Only it is not true. It may sound logical, but the law is pretty specific about which items are subject to "first sale" rule.
Or to paraphrase it: The only good corporation is the dead corporation.
MP3 files are both a wave form and a particle stream, but not simultaneously. The RIAA will tell us which and when.
Or, to look at it another way, sometimes even my enemy's interests align with my own.
And sometimes my friends do things I don't like.
See that's the exact attitude that's gotten us into such a mess. Corporations are made of people! Yes, they exist to make money but that's not an excuse to leave ethics at the door, you can (and should) make money without being a dickhead.
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.
You're in trouble now, for sure. Some lawyer is going to sue you for substituting "corporation" for "lawyer". Your statement surely infringes trademark, thief.
cheers,
hell if corporations can be people, files can be material object!
... if Capitol Records hasn't become "immaterial".
Except that a) the Depression was over in 1931, and Germany was well back into recovery in 1933, when Hitler became chancellor, and b) the economic powerhouse was paid for in debt for the first six years till 1939, and then from the loots and booties he took from the conquered countries.
As of this moment, parent is modded 50% insightful and 50% offtopic.
I dont see how its offtopic. It isnt that big of a stretch to define mp3 files as computer programs if jar files and the like are also defined as computer programs.
"His name was James Damore."
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.
See that's the exact attitude that's gotten us into such a mess. Corporations are made of people! Yes, they exist to make money but that's not an excuse to leave ethics at the door, you can (and should) make money without being a dickhead.
Yes, and while technically the bad things that corporations do are done by people, those people are not held accountable. If they were, half of the banking industry would be in jail.
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)
Unfortunately, while that is a nice thought, it doesn't bear out in practice. The removal of any personal responsibility by the staff for any action taken part by the corporation as a whole means that every action is a simple business decision. If the cost of breaking a law is less than the reward, then the simple decision is to flout the law. Strictly speaking, the corporation is actually irresponsible if it doesn't break the law in those situations.
We lost the ethics battle as soon as a corporate charter became an impenetrable shield against holding individuals accountable for their actions.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
The concept of "corporation" itself is inherently an anthropomorphization!
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
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?
Pfft. That would imply that "The Only Good Lawyer is a Dead Lawyer." But everyone knows that when you kill one of those fuckers, they seep toxic... stuff, like the Mummies in Diablo II.
"Dead" Lawyers are almost (but not quite) as bad as live ones.
I think you meant "The only good lawyer is a lawyer encased in opaque diamond and fired into the sun.
From NYCL's site: http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/capitol_redigi_120201OrderDenyGoogleMotionLeaveFileAmicus.pdf
Word game?
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?
What you consider to be immoral is not necessarily illegal.
There has never been a time when a corporate charter is or was an impenetrable shield against holding individuals accountable for their actions. If individuals break the law, whether they're doing it on behalf of a corporation or not is no shield.
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.
So you're a music pirate eh lad?
They're using their grammar skills there.
You seem to like the music they produce.
Aah, change is good. -- Rafiki
Yeah, but it ain't easy. -- Simba
We lost the ethics battle as soon as a corporate charter became an impenetrable shield against holding individuals accountable for their actions.
This whole "corporations are evil" mantra is such a canard. You think a corporate charter gives you an impenetrable shield. Put a company that dumps toxic waste into a river behind a corporation, and write to us from prison on how that worked out for you.
Corporate status doesn't provide the shield. Money does. The same way it always has. Today, it is often called crony capitalism, but is it just the buying and selling of influence. The only thing the corporate shield does is provided cover for the buying and selling.
Aah, change is good. -- Rafiki
Yeah, but it ain't easy. -- Simba
You seem to like the music they produce.
That may well be true. I don't know what music they produce though, so I'm not sure why it seems that way.
Corporations are made of people!
So they're kinda like Soylent Green?
They are made of people but headed by this cabal known as the board of directors, these same "people" are boards on several corps and will often be on each other's boards so you have this good old boy system where they "reward' each other with ever higher salaries and bonuses. then there are the shareholders which thanks to day traders turning Wall street into Vegas with nicer clothes frankly would cheer if you burned the buildings down for the insurance if it caused the stock to jump 40 points. Hell look at how MSFT recently had one of its best quarters EVAR and the stock barely moved because the day traders expect corps to make iMoney or GTFO. TLDR? If the company is private they may/may not have morals but once that IPO is done its all bottom line or watch your stock tank.
as for TFA while i don't care for Google's privacy policies i hope they rip the record company a new one because somebody need to nip this Schrodinger's cat bullshit in the bud. you see they and the game companies are trying to do an end run around the law by claiming the protections of TWO states but the liabilities of NEITHER and that shit needs to DIAF. on the one hand they say 'Oh noooo, you didn't buy a disc, you bought a license to use the content! so there is no first sale rights here!" and you go "Okay, well now my disc is scratched so i'm downloading a copy since I have a license to that content" and they go "oh noooo, you don't have a license, you had a disc! That means if its scratched or broken you have to buy a new one!" BULLSHIT, fucking total stinking bullshit! NOWHERE do we allpw a corp to claim TWO states while accepting the liabilities of neither state! Either its content or its media but NOT BOTH because each of those states have clear legal liabilities associated with them. The right of first sale is one of our cornerstones of capitalism and we have ages worth of contract law dealing with licenses that clearly state what their responsibilities are in that situation, these buttmonkey's just want to eat their cake and have it too and that shit needed to end 3 seconds after they came up with it. the court needs to lay out clearly and without doubt once they claim its X they have the responsibilities of X PERIOD.
ACs don't waste your time replying, your posts are never seen by me.
What you consider to be immoral is not necessarily illegal.
And that's a really really good thing.
We don't all have the same set of morals, but we do all have to have the same set of laws.
Forcing other people to live by your morals is as bad as other people forcing you to live by theirs.
I like my laws as minimal and amoral as possible. As few laws as possible, as cleanly and clearly enunciated as possible, and parliaments focused on making better law not more law.
Business/App ideas are like arseholes: everyone's got one, they're mostly shit, but very rarely they contain a diamond
Corporations are people my friend... you incite to murder!
Custom electronics and digital signage for your business: www.evcircuits.com
Where is Heisenberg when we need him!
Wait... I think I see Schrödinger's cat... oh, never mind.
I don't read your sig. Why are you reading mine?
Yes, and while technically the bad things that corporations do are done by people, those people are not held accountable. If they were, half of the banking industry would be in jail.
And, rightfully, they should. Acting unethically, even in the best interests of your company.shareholders, at the expense of everyone else, should be illegal. All this indoctrination of "it's just business" or "it's just politics" is ridiculous. Sure that's the way it is now, but the way it is now is not ideal and should be improved upon.
Yes, and while technically the bad things that corporations do are done by people, those people are not held accountable. If they were, half of the banking industry would be in jail.
And, rightfully, they should. Acting unethically, even in the best interests of your company.shareholders, at the expense of everyone else, should be illegal. All this indoctrination of "it's just business" or "it's just politics" is ridiculous. Sure that's the way it is now, but the way it is now is not ideal and should be improved upon.
Actually it is illegal, and yes, they 'should' be in jail. Except no one is doing anything about it.
His cat is dead. Mystery solved. Not only is the probability that isotope has decayed approaching 1 by now, you've kept the poor cat locked in a box with out food or water for over 75 years.
What music does the record company produce?
Before you start listing anything, remember that the artist makes the music, and the artist pays for the music to be recorded out of his/her own profits, and that the only material support the record company provides is a loan-sharking service that ensures that the artist is an indentured servant for most of his/her career.
The record company's contribution equals jack shit at the end of the day. They don't write the music. They don't perform it. They neither record the music, nor do they pay for it to be recorded. They are artistically and financially irrelevant to the process. Their only contribution is to loan money and control the artist's career.
One day I feel I'm ahead of the wheel / the next it's rolling over me / I can get back on / I can get back on
The answer is none Record companies do not produce music. They loan artists money, and take that money back out of the artists' piddling percentage of the profits.
One day I feel I'm ahead of the wheel / the next it's rolling over me / I can get back on / I can get back on
Is it?
If they were, half of the banking industry would be in jail.
I think you hurt your point through exaggeration. There were a lot of crooked people in finance, especially during the housing bubble, and it's a bit of a mystery why they aren't being hunted down under ordinary fraud laws. I'd bet that the worst of the fraudsters didn't even work for large corporations that might have the politcal throw to shield them - the whole buisiness of originating fraudulent loans and selling them on the large corps. Of course, the large corps need to have the hammer brought down on them for "robo-signers" too, especially since people are still getting forced into forclosure inappropriately (i.e., people making their payments) because of that BS.
But even if you believe the government is so corrupt it won't go after any major corporation, why aren't the little guys being hunted down and dragged into show trials so the government can pretend it's doing something? I guess most people would prefer to pretend the whole mess never happened.
Socialism: a lie told by totalitarians and believed by fools.
What does a film producer produce?
There's more to being a successful musician / band than simply writing a few catchy lyrics and putting them to a banging bass beat. (Feel free to change the preceeding words to suit your preferred genre of music, the principle remains the same...)
A good producer will make suggestions and edits, offer encouragement and support, provides logistical services and marketing...all of which contribute to the appeal of a band, and their financial success. Sure, there will be musicians that can do these things from themselves, but that's not where their skill set lies. After all, presumably what they're good at is making music.
I'm not disagreeing with what appears to be the majority that record companies on the whole are partially failing in their role, especially in regards modern day logistics and distribution, but, I'm sorry, the issue is not as clear cut, black and white simple as most people seem to make out. If it were then most, if not all ,musicians and bands simply wouldn't use major record companies, they'd do it all themselves. Some do. But not the ones who have become household names. Surely that must tell us something?
MP3 files are both a wave form and a particle stream, but not simultaneously. The RIAA will tell us which and when.
I, for one, welcome the guidance of our RIAA overlords.
Ray Beckerman +5 Insightful
Primarily they are distributors. They control distribution and broadcasting rights. And they work to ensure that everyone follows this and if not provides the legal funding to stop it. Also, they do marketing to make sure every kid in their target market believes that they wanted it.
Basically, everything they do and charge money for is approaching $0. So they are having a really tough time right now, because marketing and distribution is something that the artist can do directly themselves. In the wake of this new paradigm they are struggling hard to prevent others from making this fact obvious. Like megaupload.com who provided a good tool for artists to do themselves exactly what the existing "producers" used to do for them at an inflated fee.
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.
What does a film producer produce?
Why... films? But seriously, film producers generally do more than merely put money down, and films require a lot more than a couple of people to produce, unless, of course, you're the guys that created Primer.
the issue is not as clear cut... If it were then ...musicians and bands simply wouldn't use major record companies, they'd do it all themselves. Some do. But not the ones who have become household names. Surely that must tell us something?
That tells me that in the current climate, it's very difficult to get exposure unless one of the big distributors has a stake in it.
Take the Grateful Dead, for instance. They toured for years, had plenty of people go to their concerts, and sold lots and lots of records, tapes, and CDs. Do they get air play on the radio?
Another instance, this one more telling, is the airplay, or lack thereof, received by Ninch Inch Nails The Slip, in comparison to the previous Year Zero or With Teeth, both of which had a distributor. For those that like NIN, The Slip has several good songs on it, but received almost no airplay while similar songs on the previous 2 albums got overplayed into the dirt.
The cesspool just got a check and balance.
Cool. Then I've got a load of second hand MP3s to sell. Anyone interested?