What is the difference then between streaming and reading from a network drive, legally ?
None. A stream is when you download it and don't keep it. A Digital Phonorecord Delivery (DPD) is when you download it and do keep it. Music is delivered online either as a non-interactive stream (think: web radio), an interactive stream (you decide what comes next) or a DPD (you purchase it and keep it). The reason you don't see any interactive streams is because the RIAA figured a long time ago that was where the money was, and got Congress to change the law to make it so you have to pay them a ton to do it. Consequently, no one does it and there's no money in it.:)
If there is no difference, then I'm sure that most of us have been streaming music within our homes and are thussly required to pay 3.5c/song.
Well, see, you don't stream music in your house for profit, so it's fair use. But if you were charging your buddies to do it, you'd be supposed to pay.
Unfortunately, I don't believe that reading the law itself will help anyone in their understanding of acceptable behaviour-- interpretation of these laws is so incredibly loose in areas and so incredibly tight in areas, that it only seems to make sense to look at the cases.
Not only that, there's all this jargon, I agree it's obtuse and a lot of it doesn't make any sense. But, the bottom line generally for companies is, if you're making complete copies, you need to pay someone. The bottom line for individuals is, if you don't give it to anyone not in your immediate household, you're probably fine.
Yeah, we did have the express permission of the copyright holders, but we were always looking at new business ideas. Also, we needed to understand exactly what we were allowed to do under the law because our company was designed from the getgo to stake out the maximum area possible under the law.
So, for example, we didn't set up interactive streaming services because that gets you into a different section of the law and the payments you have to make are different. We negotiated our content contracts to focus on the downloadable market, but in order to do that we had to understand the law very well. We didn't want to pay for rights we knew we weren't going to use because the law made them unprofitable, anyway.
As another example, I had the "Beam It" idea before mp3.com released theirs (although I think they were already working on it). But when I brought it to our copyright expert, he quickly persuaded me it'd be illegal and we didn't do it.
So, I spent a lot of time brainstorming with the other execs at the company, trying to figure out exactly the maximum services we could provide given the scope of the law. It was an interesting puzzle, although I can't say I miss always wondering if you're about to break the law very much.
Had the MP3.com members been buying shares in the company, they might have had a right to the music MP3.com owned.
This is a common misconception about the mp3.com case. Mp3.com did not get in trouble for streaming music to people. It never even got that far. The courts did not address the question of whether that was fair use.
What the courts did look at was, "did mp3.com copy 300,000 CDs to compress them to set the service up?" Mp3.com said, "sure, we did, but that was fair use." The Judge said, "Nice try. You're a for-profit corporation, so whatevever you do is for profit. You copied those CDs because you thought it'd make you money, and to do that, you need a license." This is all very clear in copyright law - a for profit company may not copy a whole work for anything other than backup purposes without paying the copyright holder.
Even if Cringley's novel theory of group ownership works (which I think it doesn't), it's irellevant. The company copies 100,000 CDs to start with and then charges $.05 for every copy after that. Copyright law is crystal clear that you need to have a license to do that, even if the copies you're making would otherwise be "fair use" (which, as I said, these aren't, anyway).
I'm not aware of a specific case, but it doesn't really matter if the company is making copies of the document. If they're just keeping one and passing around the physical to one shareholder at a time, that'd probably be legal. But if a for-profit company makes complete copies of an article for anything other than reasonable backup purposes, it's presumed to be copying them for profit. When you copy something for profit you have to pay the copyright owner. It doesn't matter whether or not it's fair use for the shareholder to get the document (and, it probably isn't, but leaving that aside) as soon as the company make the copy, it's infringed the work. See the mp3.com Beam-It case for an example of a company trying to make money off of copies that would normally be fair use getting whacked.
Pray tell, how can you possibly figure out the capitalization requirements from this article. The corporation DOESN'T have to be public. In fact, in this case having it be public is probably not a good idea...
In the article, were you to actually read it, he describes going public on the NASDAQ for $20/share. Assuming he means the NASDAQ National Market, that requires the company to have, among other things, $1 million in profits last year or $75 million in assets. Regardless of what his business is, that's the NASD requirement. Going public these days is Hard, even if you have a profitable business. The business he describes is not profitable until after it is public.
I was under the impression we were discussing the business Mr. Cringley described in his article. If you wish to describe a different business, we can talk.
What about a non-profit corporation?
Again, I thought we were speaking of Cringley's described company, which he clearly wishes to list on the NASDAQ. If you are aware of any nonprofit companies listed on the NASDAQ, I'd love to see their symbols. Public companies are for-profit entities, thus, the presumption in law is that they do what they do for profit. Yes, private, nonprofit companies don't do things for profit, but that's not what we were discussing, here. I'll head you off before you suggest a nonprofit to do this: 1) I'm not clear you can issue shares in a nonprofit. 2) If you put together a nonprofit clearly and only to engage in piracy, I'm pretty sure the courts would see through it and bust you anyway. 3) Even if they didn't, congress would change the law and the net effect would be that you'd eliminate CDs from libraries.
Come the fuck on jack. Is this logic applied to a co-op apartment? No.
Were we talking about co-op apartments? No, we were talking about US music copyright law, which has quite different rules governing it than the rules governing cooperative rental of apartments. One of the standard tests in US copyright law for if an action is fair use is "the effect of the use upon the potential market for or value of the copyrighted work." Which is usually translated into non-lawyerese as, "would it replace a sale?" or, in other words, "would you normally need to buy it to do this?" Another important factor to weigh is "whether such use is of a commercial nature," which this clearly is. Mr. Cringley's business, as described, is a clear violation of the law. If you wish to describe another business, I'll listen.
The shareholders can decide to do with their collectively owned property whatever they wish.
As long as they don't break the law with it. Copying it 60 million times and distributing it to the shareholders would be a clear violation of the law, because it is clearly not "fair use." Since the company he describes is a for-profit entity, the presumption would be that it engaged in such copying for profit, and it would therefor need a licensing agreement with the copyright holders. This is exactly what mp3.com got slapped with on its "Beam It" service.
There are other laws governing "streaming" of music, setting down how much you have to pay, etc. I don't think you're going to get very far by trying to claim that you were just "caching" it there but it wasn't a stream. The law and the courts just aren't that stupid. It's not some broken algorithm you can hack like this, there are real people who will look at what you did, try to determine your intent, and judge you accordingly.
What the video store does isn't illegal because it's a video. If you tried to do the same thing with a CD-rental store, it'd be illegal, because it is specifically made illegal to rent music in the US for profit. Period. There is a specific law that makes it that way. And anything you do that looks or smells like renting or loaning of music for profit is going to violate that law.
What I think you don't understand is that there is not just some generalized copyright law which sets up incentives and penalties. This is a horrid patchwork of definitions and patterns of interest which specifically defines what you have to pay for and when and what you may and may not do with different types of content. And the rules are one thing for videos and another for music and a third for web pages. Analogizing between them when you haven't read the law isn't going to get anywhere. If you really want to sit down and read the requisite law, it's not totally inconceivable that you'll find a path through the rocks no one noticed, before, but there were a lot of really bright people who tried to keep there from being a path, and the courts will, to a certain extent, interpret the law according to their intent. Which was that you not be able to make money from copying music without paying the copyright owner. And that's not a modern, DMCA-invention, there have been cases on this very topic for a hundred years, and it is very clear that you May Not Copy Music For Money Without Paying The Copyright Owner.
Yeah, because Company A is making money from effectively copying the CD, without paying the copyright owner. That first $3 transaction is clearly illegal right off, because what you're doing is paying the company $3 to copy the CD for you. Even if you try to call it something else, that's the end result, and a court is going to see through that.
These kinds of sham transactions don't work in a court of law. The law is not some mindless computer that you can hack this easily; the law is made up of thinking human beings interpreting laws made by other thinking human beings, and it is very clearly set up to make this sort of behavior not possible. When I first started working with businesses that were just one side or other of some law, I fell into this trap, too. Talking to a few lawyers cured me, and the point I've tried to make a number of times in this thread is that the law is not a mindless algorithm you can trap by using odd definitions or structures. Courts will take into account your intent and your effect and will judge you accordingly, and my favorite legal joke (*) notwithstanding, they're not that stupid. Sometimes you can get away with it if you can figure out how to play different parts of the law against each other. But the law is very specifically set up so that you May. Not. Copy. A. Whole. Work. For. Money. Without. Paying. Even if you could find an easy loophole to exploit, they'd close it so quickly it'd make your head spin.
* What do you call a lawyer with an 85 IQ? "Your Honor."
You absolutely have to have the one-for-one checkout for it to not be obviously illegal.
As I've said elsewhere, this is not explicity prohibited by law, and I'm not aware of any caselaw on this topic. However, I suspect, if you put together something like this and it was known by everyone that - wink, wink, nudge, nudge - it was really all for piracy, I think you'd probably get put out of business by the courts.
IANAL, but I believe that music streamed from a CD jukebox would depend on the exact situation. One person at one time is probably OK, but multiple people at the same time would not be. Also, depending on the exact situation of the streaming, you may run into the interactive streaming laws, which are quite specific (and expensive).
My understanding is that reasonable backup copies are fine. But more than a few and you're going to get in trouble, assuming anyone notices.
"Interactive streaming" (streaming where you get to decide what comes next) is already well-regulated by the law and very expensive (bare minimum of $.035/song).
Look, the technical problems to all of this is trivial. The licensing is hard. If you haven't rea d a lot of law (and BTW, Cringley hasn't) please accept that it's just not very easy to get away with this. A bunch of smart people have spent a lot of money writing laws to keep you from getting music for free, and you're not going to beat them at it if you don't at least read the laws and the cases.
That's not what mp3.com got in trouble for. Read the decision. MP3.com got it trouble for ripping 3,000,000 songs to encode them to MP3. They never even got to the question of whether users could download them.
The law in the US is, if you aim to profit from making a copy, you have to pay the copyright holder. MP3.com didn't plan for this, even though the copy the end-user would've made would've been fair use. Every time they copied the music (once to make the repository, once for each end user) they need to pay the copyright holders. They didn't, so they lost. Cringley's company has exactly the same problems.
Read the decision. Mp3.com got pwn3d because they copied the CDs with a profit motive, at all. They got burned on the encode. They never even got tried on the downloads (which they would've lost, too). It doesn't matter if they're shareholders, or not. Cringley suggests charging a nickle - if you make $.05 on the copy and don't pay the copyright owner, you're clearly guilty of copyright infringement and will lose. This isn't some weird gray area, it's very well defined.
No, that isn't the point. They did not get in trouble for downloading. Read the decision. All they got in trouble for was making 3,000,000 MP3s with a profit motive. That's a clear violation of US laws, and Cringley's company would have the same problems.
Your fundamental assumption is that corporations have the same space-shifting abilities that people do. Even in the normal case (where only one copy is being used at a time by the whole corporate entity, which this isn't) if the reason it's doing it is to profit, it don't have such a right. See the mp3.com case, which was not about mp3.com downloading files to users, but only about mp3.com space-shifting 300,000 CDs to MP3s. They lost, hard and fast, and it was the end of them.
This is what so many technical people don't understand. The law is very hard to hack, because it isn't a computer program. It appears to be an algorithm, but the machine which interprets it isn't completely predictable, and it will try to take into account both the intent of the actors in the case and the lawmakers who wrote the laws. It's very hard to find a real loophole and exploit it.
Unfortunately, Digitial Phonorecord Deliveries carry no right of resale. I don't think this makes sense, but it's the law. If you buy a download, you can't then sell it to me, even if you delete the original. There is no first sale right for DPDs.
Spooling down to the customer is not caching, it's copying. Even if you could design a system that read the CDs and held them in RAM permanantly and that met the legal definition of transient (which I doubt), your first download would be a copy and you've run afoul of copyright law, again. If you're "just" streaming, see the relevant section of the law on streaming.
The closest thing US law has to a "library copy" for music is that nonprofits are allowed to lend music. For-profit companies are not. The cost of the music is the same. If you wish to negotiate a custom license from the copyright owner to allow sending it to all your shareholders, you may, of course, do that, but you can do that now and it doesn't take any novel ideas, just a fat wallet.
Let me try to rally from coding too long and answer to the best of my abilities.
I'm having a lot of trouble finding the part of the law you're talking about. In my copy it's maybe 114 (d)(1)(C)(ii & iv). If so, 114(d)(1) says "The performance of a sound recording publicly by means of a digital audio transmission, other than as a part of an interactive service..." interactive service is the magic phrase, there. If the listener gets to decide what it is, it's interactive. Otherwise, you've just reinvented streaming radio, congratulations.:p
I realize there are a lot of magic code words here and the law is nonobvious. As I've said, I only know it because I spent several years trying to make sure I didn't accidentally step across the line while designing systems at EMusic.
Transmitting the music in an equation - setting aside the nontrivial nature of this task:) you'd still need to digitize the equation and I bet you'd lose that one in court.
As for the music video idea, see rollingstone.com, which was purchased by EMusic.;) If you got big on it, though, I imagine you'd need to pay mechanical licenses, anyhow, which is prohibitive at the interactive, statuatory rate ($.075+)
In fact, that's why Justin designed Gnutella the way he did - no company in the middle. I am of the opinion, however, that decentralized P2P will, long term, only be used for things that are illegal. It's inefficient by definition compared to a backbone network. Recent attempts to make distributed P2P be more like a backbone network come dangerously close to making the network attackable, I think. True anonymity (freenet) under the current Internet must be more expensive than traceability. As long as this is true, anonymous P2P will only be used for things where anonymity is more important than efficiency - i.e., for illegal things like piracy.
But, once you get into morality I think the tradition in US copyright is that piracy isn't immoral (whatever the RIAA would tell you aside). The Constitution's enshrinement of intellectual property was controversial at the time and is entirely pragmatic: It is "for the advancement of the useful arts and sciences," not because copyright owners have some moral right to control their works. Tonight I've merely been discussing what the law is. I've made no assertions about what it should be.
My friend, if I knew how to get people to give me $150 million for a nonprofit I would not be sitting here talking to you right now.:)
Notwithstanding I think that putting together a nonprofit so clearly structured to avoid the law would probably in and of itself be illegal. And, as far as I'm aware, the streaming stuff hits nonprofits as well.
But streaming is covered by another set of laws. Sorry I don't have a clear link to the law (getting tired) but USC Title 17 Sec. 115 says if you're going to do on-demand streaming (where the customer picks what to listen to) then you have to pay mechanical royalties and get a deal from the copyright owner, or you're guilty of copyright infringement, again. That's the next thing mp3.com would've gotten killed on if the first blow hadn't taken them down.
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What is the difference then between streaming and reading from a network drive, legally ?
:)
None. A stream is when you download it and don't keep it. A Digital Phonorecord Delivery (DPD) is when you download it and do keep it. Music is delivered online either as a non-interactive stream (think: web radio), an interactive stream (you decide what comes next) or a DPD (you purchase it and keep it). The reason you don't see any interactive streams is because the RIAA figured a long time ago that was where the money was, and got Congress to change the law to make it so you have to pay them a ton to do it. Consequently, no one does it and there's no money in it.
If there is no difference, then I'm sure that most of us have been streaming music within our homes and are thussly required to pay 3.5c/song.
Well, see, you don't stream music in your house for profit, so it's fair use. But if you were charging your buddies to do it, you'd be supposed to pay.
Unfortunately, I don't believe that reading the law itself will help anyone in their understanding of acceptable behaviour-- interpretation of these laws is so incredibly loose in areas and so incredibly tight in areas, that it only seems to make sense to look at the cases.
Not only that, there's all this jargon, I agree it's obtuse and a lot of it doesn't make any sense. But, the bottom line generally for companies is, if you're making complete copies, you need to pay someone. The bottom line for individuals is, if you don't give it to anyone not in your immediate household, you're probably fine.
Yeah, we did have the express permission of the copyright holders, but we were always looking at new business ideas. Also, we needed to understand exactly what we were allowed to do under the law because our company was designed from the getgo to stake out the maximum area possible under the law.
So, for example, we didn't set up interactive streaming services because that gets you into a different section of the law and the payments you have to make are different. We negotiated our content contracts to focus on the downloadable market, but in order to do that we had to understand the law very well. We didn't want to pay for rights we knew we weren't going to use because the law made them unprofitable, anyway.
As another example, I had the "Beam It" idea before mp3.com released theirs (although I think they were already working on it). But when I brought it to our copyright expert, he quickly persuaded me it'd be illegal and we didn't do it.
So, I spent a lot of time brainstorming with the other execs at the company, trying to figure out exactly the maximum services we could provide given the scope of the law. It was an interesting puzzle, although I can't say I miss always wondering if you're about to break the law very much.
Had the MP3.com members been buying shares in the company, they might have had a right to the music MP3.com owned.
This is a common misconception about the mp3.com case. Mp3.com did not get in trouble for streaming music to people. It never even got that far. The courts did not address the question of whether that was fair use.
What the courts did look at was, "did mp3.com copy 300,000 CDs to compress them to set the service up?" Mp3.com said, "sure, we did, but that was fair use." The Judge said, "Nice try. You're a for-profit corporation, so whatevever you do is for profit. You copied those CDs because you thought it'd make you money, and to do that, you need a license." This is all very clear in copyright law - a for profit company may not copy a whole work for anything other than backup purposes without paying the copyright holder.
Even if Cringley's novel theory of group ownership works (which I think it doesn't), it's irellevant. The company copies 100,000 CDs to start with and then charges $.05 for every copy after that. Copyright law is crystal clear that you need to have a license to do that, even if the copies you're making would otherwise be "fair use" (which, as I said, these aren't, anyway).
I'm not aware of a specific case, but it doesn't really matter if the company is making copies of the document. If they're just keeping one and passing around the physical to one shareholder at a time, that'd probably be legal. But if a for-profit company makes complete copies of an article for anything other than reasonable backup purposes, it's presumed to be copying them for profit. When you copy something for profit you have to pay the copyright owner. It doesn't matter whether or not it's fair use for the shareholder to get the document (and, it probably isn't, but leaving that aside) as soon as the company make the copy, it's infringed the work. See the mp3.com Beam-It case for an example of a company trying to make money off of copies that would normally be fair use getting whacked.
Pray tell, how can you possibly figure out the capitalization requirements from this article. The corporation DOESN'T have to be public. In fact, in this case having it be public is probably not a good idea...
In the article, were you to actually read it, he describes going public on the NASDAQ for $20/share. Assuming he means the NASDAQ National Market, that requires the company to have, among other things, $1 million in profits last year or $75 million in assets. Regardless of what his business is, that's the NASD requirement. Going public these days is Hard, even if you have a profitable business. The business he describes is not profitable until after it is public.
I was under the impression we were discussing the business Mr. Cringley described in his article. If you wish to describe a different business, we can talk.
What about a non-profit corporation?
Again, I thought we were speaking of Cringley's described company, which he clearly wishes to list on the NASDAQ. If you are aware of any nonprofit companies listed on the NASDAQ, I'd love to see their symbols. Public companies are for-profit entities, thus, the presumption in law is that they do what they do for profit. Yes, private, nonprofit companies don't do things for profit, but that's not what we were discussing, here. I'll head you off before you suggest a nonprofit to do this: 1) I'm not clear you can issue shares in a nonprofit. 2) If you put together a nonprofit clearly and only to engage in piracy, I'm pretty sure the courts would see through it and bust you anyway. 3) Even if they didn't, congress would change the law and the net effect would be that you'd eliminate CDs from libraries.
Come the fuck on jack. Is this logic applied to a co-op apartment? No.
Were we talking about co-op apartments? No, we were talking about US music copyright law, which has quite different rules governing it than the rules governing cooperative rental of apartments. One of the standard tests in US copyright law for if an action is fair use is "the effect of the use upon the potential market for or value of the copyrighted work." Which is usually translated into non-lawyerese as, "would it replace a sale?" or, in other words, "would you normally need to buy it to do this?" Another important factor to weigh is "whether such use is of a commercial nature," which this clearly is. Mr. Cringley's business, as described, is a clear violation of the law. If you wish to describe another business, I'll listen.
The shareholders can decide to do with their collectively owned property whatever they wish.
As long as they don't break the law with it. Copying it 60 million times and distributing it to the shareholders would be a clear violation of the law, because it is clearly not "fair use." Since the company he describes is a for-profit entity, the presumption would be that it engaged in such copying for profit, and it would therefor need a licensing agreement with the copyright holders. This is exactly what mp3.com got slapped with on its "Beam It" service.
There are other laws governing "streaming" of music, setting down how much you have to pay, etc. I don't think you're going to get very far by trying to claim that you were just "caching" it there but it wasn't a stream. The law and the courts just aren't that stupid. It's not some broken algorithm you can hack like this, there are real people who will look at what you did, try to determine your intent, and judge you accordingly.
What the video store does isn't illegal because it's a video. If you tried to do the same thing with a CD-rental store, it'd be illegal, because it is specifically made illegal to rent music in the US for profit. Period. There is a specific law that makes it that way. And anything you do that looks or smells like renting or loaning of music for profit is going to violate that law.
What I think you don't understand is that there is not just some generalized copyright law which sets up incentives and penalties. This is a horrid patchwork of definitions and patterns of interest which specifically defines what you have to pay for and when and what you may and may not do with different types of content. And the rules are one thing for videos and another for music and a third for web pages. Analogizing between them when you haven't read the law isn't going to get anywhere. If you really want to sit down and read the requisite law, it's not totally inconceivable that you'll find a path through the rocks no one noticed, before, but there were a lot of really bright people who tried to keep there from being a path, and the courts will, to a certain extent, interpret the law according to their intent. Which was that you not be able to make money from copying music without paying the copyright owner. And that's not a modern, DMCA-invention, there have been cases on this very topic for a hundred years, and it is very clear that you May Not Copy Music For Money Without Paying The Copyright Owner.
Yeah, because Company A is making money from effectively copying the CD, without paying the copyright owner. That first $3 transaction is clearly illegal right off, because what you're doing is paying the company $3 to copy the CD for you. Even if you try to call it something else, that's the end result, and a court is going to see through that.
These kinds of sham transactions don't work in a court of law. The law is not some mindless computer that you can hack this easily; the law is made up of thinking human beings interpreting laws made by other thinking human beings, and it is very clearly set up to make this sort of behavior not possible. When I first started working with businesses that were just one side or other of some law, I fell into this trap, too. Talking to a few lawyers cured me, and the point I've tried to make a number of times in this thread is that the law is not a mindless algorithm you can trap by using odd definitions or structures. Courts will take into account your intent and your effect and will judge you accordingly, and my favorite legal joke (*) notwithstanding, they're not that stupid. Sometimes you can get away with it if you can figure out how to play different parts of the law against each other. But the law is very specifically set up so that you May. Not. Copy. A. Whole. Work. For. Money. Without. Paying. Even if you could find an easy loophole to exploit, they'd close it so quickly it'd make your head spin.
* What do you call a lawyer with an 85 IQ? "Your Honor."
You absolutely have to have the one-for-one checkout for it to not be obviously illegal.
As I've said elsewhere, this is not explicity prohibited by law, and I'm not aware of any caselaw on this topic. However, I suspect, if you put together something like this and it was known by everyone that - wink, wink, nudge, nudge - it was really all for piracy, I think you'd probably get put out of business by the courts.
IANAL, but I believe that music streamed from a CD jukebox would depend on the exact situation. One person at one time is probably OK, but multiple people at the same time would not be. Also, depending on the exact situation of the streaming, you may run into the interactive streaming laws, which are quite specific (and expensive).
My understanding is that reasonable backup copies are fine. But more than a few and you're going to get in trouble, assuming anyone notices.
You are correct on all these points and clearly know the fair-use law better than I.
:)
However, I will note that you're not disagreeing with me that Cringley's on crack.
Hey, my pleasure! And double for me on the errors.
"Interactive streaming" (streaming where you get to decide what comes next) is already well-regulated by the law and very expensive (bare minimum of $.035/song).
Look, the technical problems to all of this is trivial. The licensing is hard. If you haven't rea d a lot of law (and BTW, Cringley hasn't) please accept that it's just not very easy to get away with this. A bunch of smart people have spent a lot of money writing laws to keep you from getting music for free, and you're not going to beat them at it if you don't at least read the laws and the cases.
The only problem with this is that renting CDs is illegal in the US.
That's not what mp3.com got in trouble for. Read the decision. MP3.com got it trouble for ripping 3,000,000 songs to encode them to MP3. They never even got to the question of whether users could download them.
The law in the US is, if you aim to profit from making a copy, you have to pay the copyright holder. MP3.com didn't plan for this, even though the copy the end-user would've made would've been fair use. Every time they copied the music (once to make the repository, once for each end user) they need to pay the copyright holders. They didn't, so they lost. Cringley's company has exactly the same problems.
Read the decision. Mp3.com got pwn3d because they copied the CDs with a profit motive, at all. They got burned on the encode. They never even got tried on the downloads (which they would've lost, too). It doesn't matter if they're shareholders, or not. Cringley suggests charging a nickle - if you make $.05 on the copy and don't pay the copyright owner, you're clearly guilty of copyright infringement and will lose. This isn't some weird gray area, it's very well defined.
No, that isn't the point. They did not get in trouble for downloading. Read the decision. All they got in trouble for was making 3,000,000 MP3s with a profit motive. That's a clear violation of US laws, and Cringley's company would have the same problems.
Your fundamental assumption is that corporations have the same space-shifting abilities that people do. Even in the normal case (where only one copy is being used at a time by the whole corporate entity, which this isn't) if the reason it's doing it is to profit, it don't have such a right. See the mp3.com case, which was not about mp3.com downloading files to users, but only about mp3.com space-shifting 300,000 CDs to MP3s. They lost, hard and fast, and it was the end of them.
*Applause*
This is what so many technical people don't understand. The law is very hard to hack, because it isn't a computer program. It appears to be an algorithm, but the machine which interprets it isn't completely predictable, and it will try to take into account both the intent of the actors in the case and the lawmakers who wrote the laws. It's very hard to find a real loophole and exploit it.
Unfortunately, Digitial Phonorecord Deliveries carry no right of resale. I don't think this makes sense, but it's the law. If you buy a download, you can't then sell it to me, even if you delete the original. There is no first sale right for DPDs.
Spooling down to the customer is not caching, it's copying. Even if you could design a system that read the CDs and held them in RAM permanantly and that met the legal definition of transient (which I doubt), your first download would be a copy and you've run afoul of copyright law, again. If you're "just" streaming, see the relevant section of the law on streaming.
The closest thing US law has to a "library copy" for music is that nonprofits are allowed to lend music. For-profit companies are not. The cost of the music is the same. If you wish to negotiate a custom license from the copyright owner to allow sending it to all your shareholders, you may, of course, do that, but you can do that now and it doesn't take any novel ideas, just a fat wallet.
Thankfully in the US we have the powerful music-industry lobby to save us from such things.
Let me try to rally from coding too long and answer to the best of my abilities.
:p
:) you'd still need to digitize the equation and I bet you'd lose that one in court.
;) If you got big on it, though, I imagine you'd need to pay mechanical licenses, anyhow, which is prohibitive at the interactive, statuatory rate ($.075+)
I'm having a lot of trouble finding the part of the law you're talking about. In my copy it's maybe 114 (d)(1)(C)(ii & iv). If so, 114(d)(1) says "The performance of a sound recording publicly by means of a digital audio transmission, other than as a part of an interactive service..." interactive service is the magic phrase, there. If the listener gets to decide what it is, it's interactive. Otherwise, you've just reinvented streaming radio, congratulations.
I realize there are a lot of magic code words here and the law is nonobvious. As I've said, I only know it because I spent several years trying to make sure I didn't accidentally step across the line while designing systems at EMusic.
Transmitting the music in an equation - setting aside the nontrivial nature of this task
As for the music video idea, see rollingstone.com, which was purchased by EMusic.
In fact, that's why Justin designed Gnutella the way he did - no company in the middle. I am of the opinion, however, that decentralized P2P will, long term, only be used for things that are illegal. It's inefficient by definition compared to a backbone network. Recent attempts to make distributed P2P be more like a backbone network come dangerously close to making the network attackable, I think. True anonymity (freenet) under the current Internet must be more expensive than traceability. As long as this is true, anonymous P2P will only be used for things where anonymity is more important than efficiency - i.e., for illegal things like piracy.
But, once you get into morality I think the tradition in US copyright is that piracy isn't immoral (whatever the RIAA would tell you aside). The Constitution's enshrinement of intellectual property was controversial at the time and is entirely pragmatic: It is "for the advancement of the useful arts and sciences," not because copyright owners have some moral right to control their works. Tonight I've merely been discussing what the law is. I've made no assertions about what it should be.
My friend, if I knew how to get people to give me $150 million for a nonprofit I would not be sitting here talking to you right now. :)
Notwithstanding I think that putting together a nonprofit so clearly structured to avoid the law would probably in and of itself be illegal. And, as far as I'm aware, the streaming stuff hits nonprofits as well.
But streaming is covered by another set of laws. Sorry I don't have a clear link to the law (getting tired) but USC Title 17 Sec. 115 says if you're going to do on-demand streaming (where the customer picks what to listen to) then you have to pay mechanical royalties and get a deal from the copyright owner, or you're guilty of copyright infringement, again. That's the next thing mp3.com would've gotten killed on if the first blow hadn't taken them down.