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Legal Implications of MP3 Rulings
Daniel M. German writes "The CyberLaw Journal of the NYTimes has an
excellent
article about the MP3 and the
implications of the recent ruling on the case
RIAA vs. Rio. Simply put, by making
a copy of your MP3 you are "space shifting"
your already adquired music. Further, it
is fair use. Some even claim that fair use
might mean it is legal to own a copy,
even if it came from an illegal source. Quite
interesting reading. " Its the NY Times, so you need
a free account to read it.
The digital home recording act also EXPLICITLY exempts home computer equipment. This was done SPECIFICALLY so that the DHRA would not hinder the development of the fast growing computer industry (and it is still so very young).
The DHRA does not apply WHATSOEVER to computers. It ONLY applies to consumer hardware that is sold for the sole purpose of recording music. If it is a computer peripheral, it is exempt.
It is really interesting to watch as the ossified institutions of the 19th and 20th century struggle to catch up with the changes imposed by the dawn of the Information Age. It is a curse: "May you live in interesting times" and I think it has been laid upon us all.
The RIAA is trying to hold onto what's past instead of what's ahead. Ask IBM what happens when you don't try to forge ahead with the new ideas, rather than try to stop the change.
RIAA, get in the MP3 business itself. I remeber how upset they were when cassettes became big. "Oh, the end of an industry" the moaned. It didn't happen then and it won't happen now. There will always be people who buy music and CDs, if not for the "quality" then for the convenience.
It's a thankless job, but I've got a lot of Karma to burn off
Now now... The article did not say that "fair use" extended to illeagal copies. Just that WHERE you get the copy is irrevelant. So, if I were to download "Bon Jovi - Keep the Faith" in MP3 format from a "pirate" site, I'm still legal because I happen to own that CD. It just saves me the trouble of ripping and compressing it myself. It doesn't hurt the artist (I bought the CD). So where's the problem? Granted, many people don't own the source of every MP3 file they have. I won't deny that. Hell, I probably don't have the source disc for all of mine. But I'd say I have a high percentage. Does that make it right? Probably not. But in the end, does it really matter?
;)
I'm plenty happy to give money to the artists. I've bought 2 discs from MP3.COM and plan to buy more when I find more artists I like. I don't buy CDs from the record companies, but that's because I don't like any of the music I've seen them make for a last few years enough to spend that kind of money on it. Oh.. I just remembered, I just bought one.. "Weird Al - Running with scisors" Gotta love Weird Al.
Nobody's perfect, but at least some of us make an effort.
Before you dismiss me as yet another pirate, you may want to talk to some artists too. I've been in communication with a few just starting out and they love the whole concept of MP3 distribution. They are aware that some people will copy thier stuff, but they tell me that they get lots of people buying thier stuff on MP3.COM. And in the end they feel it helps them sell CDs because of the increased exposure.
It's a lot like software piracy, which has been going on since the dawn of computers. People copy the software, decide they like it, and support the creators of it. Sure, there are going to be people that will only copy. But buy giving people free copies that company gets more users, and some of those users will buy the new version when the upgrade comes out. In the end, they do better. I know people that have not paid for any M$ software, ever, and they have just about everything M$ ever made. I know more people that have done this then copy MP3s.... And M$ is still in business, being charged with a monopoly no less. Food for thought.
This is the crux of the battle between any purveyor of information commodities in analog/physical format and a purveyor of the very same commodity in digital format (or sometimes even between 2 digital formats!). The law is awkwardly worded to refer to a digital audio device which could be marketed to consumers, which, according to this ruling, excludes whatever bizarre things we choose do with our general-purpose digital devices. Observe:
(3) A ''digital audio recording device'' is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for -
(A) professional model products, and
(B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.
I'm not quite sure how calling the Rio a "peripheral" excludes it from this law. In fact, I'm not quite sure how you can call the Rio a peripheral, since it's actually useful even without a computer, as opposed to a printer, scanner, modem, etc. Nonetheless, this law seems to apply as easily to Winamp and RealJukebox as it does to the Rio (after all, is software not a device, albeit not a physical one?)
In any event, the courts (and businesses) are going to have a hard time of determining what is the nature of any information commodity as it becomes available in digital form, and consequently, is easily accessed from any of a number of devices. Books, TV shows and movies, and phone calls will certainly cause growing pains (and quite possibly, bankruptcy) for publishers, networks, studios, cable companies, and phone companies (not to mention ISPs) as the physical media are replaced by digital formats.
One thing is certain, though: the excuse of "it's just part of a computer, not an X" is not going to hold legal weight much longer. It won't make any sense when your TV/VCR, radio, and phone are computers or network devices.
- Richie (with apologies to Nicholas Negroponte)
This is interesting. If you stick a copy of, say, Winblows 98 on your Hotline server, and I pull a copy off an install it in my computer, how's that not "space-shifting" the digital work too?
I haven't read the actual text of the ruling, but this seems to be in quite a spot for blowing the concept of copyrighting in general out of the water, to a more "give it to anyone, but don't sell it to anyone" mentality.
Personally I think that's a more reasonable interpretation of the concept of a copyright anyway... don't limit who can use something, limit who can profit from its use. Of course in this case distributing the copy is still illegal, but being in posession of said copy isn't.
Maybe we'll start to see some intelligence re: software patents one of these days. Or worse these "business practice" patents.
This clearly isn't so.
Suppose I am a journalist in a community where a painting by a modern artist is prominently displayed in a local museum, and I print a 2" x 2" photo of the painting in an article about a new gallery. That's certainly fair use.
Now suppose that the painting has been stolen from the museum and held as a "hostage" by a group of terrorists. These terrorists contact me to explain their point of view, and show me the undamaged painting to prove their bona fides. I print a 2" x 2" photo of the painting in the paper. Are you suggesting that's not fair use because the terrorists don't own the painting?
(Alternatively, suppose that a group of radical art critics are manufacturing counterfeits of the painting in order to prove some political point, and I print a photo of the counterfeit. That would also seem to be fair use.)
Conclusion: fair use doesn't depend on whether the source is legit.
The digital recording act isn't what the big change here is, its the concept of "space-shifting" a digital work. It depends how tightly the ruling was worded if it could be interpreted to mean any digital data.
Comes down to largely if the court said "digitally encoded music [video?]" or if they said digital content or other more generic thing.
The apparent irony is that Sony runs ads saying "Copy your CDs onto MiniDiscs!" and Phillips is saying "Copy your CDs with our Audio CD Burner!" and meanwhile they're both fighting MP3.
However, not many people know that all blank recordable media sold in the US (Cassette, MiniDisc, Blank Audio CD) has a Record Company Tax built into the price. Just compare the cost of the Phillips blank Audio CD versus your standard computer blank - $3 versus $1.50, or twice as expensive. An audio cassette tape can be more expensive than a VHS tape.
This "Tax" is a complete scam, because it applies even if you are making recordings of non-copyrighted works (such as your own). MP3 are the tip of the media-less iceburg, and they're scrambling to come up with something to replace the 80s-era media tax comprismise. But, as it's been pointed out here repeately, anything they come up with is already obsolete.
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Business. Numbers. Money. People. Computer World.
The big monolithic recording industry that we know today hasn't even been around 50 years.
Well into the 1950s, most records were made by local distributers or the artists themselves and were sold through local outlets. I heard once that in the 1950s US South, there was something like 100 independantly black owned record companies. (Are there even 100 independant/not-pirate MP3 sites on the whole WWW?)
The big national money wasn't really in the records - it was in the sheet music (so people could here their favorite local bands play the established tunes).
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Business. Numbers. Money. People. Computer World.
"One of the most important aspects of this decision was the court's holding that computer hard drives are not subject to the Audio Home Recording Act," said EFF's Steele. This means that computer manufacturers can continue to design their products without any restrictions from the audio industry, she said.
One veteran copyright lawyer pointed out that if the Audio Home Recording Act does not apply to personal computers, which are important copying devices in the digital age, the law becomes almost meaningless and offers little or no protection to copyright holders, who worry about online music piracy......RIAA will seek to lobby Congress to have the law amended to extend to computers and computer peripherals.
Personally this scares me to death. So far the judges have used some common sense when it comes to issues like this, but I don't expect Congress to use much common sense under lobby pressure. If congress is stupid enough to accually amend the law, I can only imagine how destructive this would be to the computer industry. I see no possible way such a law could be followed without great expense. Such an expense could destroy much of the computer manufacures. Accually if pressured most would simply buckle and be forced to impliment SDMI or something stupid like that.
(I appologize if this was posted twice)