er, the section you found outlaws the making of "bootleg" recordings without the permission of the artist -- bringing a microphone and tape recorder to a concert.
Anyway, Chapter 11 of Title 17 is still part of Title 17, and Section 1008 immunizes consumers against any actions "under this title", so I'm not following your logic.
That was the RIAA's goal, not Congress' goal. As it turned out, Congress added paragraph 1008 and made the AHRA very consumer friendly, by legalizing all non-commercial copying of music.
That would make them guilty of contributory infringement -- aiding and abetting crimes being committed by its users.
However, the activities of Napster's users are protected by the AHRA, which specifically disallows any actions based on non-commercial copying of music by consumers.
Do you see any mention of digital audio copied recording? I sure don't.
It's there.
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.
The Court of Appeals that reversed the Napster injunction decided that "such a device or medium" includes any device that can hold music recordings, not just the small subset of devices and media branded and intended specifically for recording music that are subject to the AHRA's SCMS and royalty requirements, and specifically, that hard drives are just as protected as audio CDRs.
As far as I can tell, this section would in no way protect Napster or Napster users.
Ah, but Napster's users are making non-commercial recordings of music files, and making non-commercial recordings is protected by the AHRA.
Since Napster's users are engaging in non-infringing activity, Napster cannot be contributing to copyright infringement, because there is no infringement!
But this does open up a whole new can of worms. If I have the Fair Use rights for music, movies, etc that I legally purchase, why the hell am I paying a tax on a medium that I use for non-commercial, personal duplication?
First off, this law only applies to copyrighted audio works, not movies.
Secondly, the AHRA does not provide a fair-use defense. The AHRA provides something much, much stronger. It provides a statutory excemption from copyright infringement. This is very, very different. With Fair Use, the court is required to consider exactly how you are using the music, and decide whether it is fair or not. With Paragraph 1008, the only issue before the court is whether or not the consumer's use of Napster is non-commercial in nature. Not Napster itself, but the consumer's use of Napster.
You ask a good question though. Why does this tax exist? Where the hell did it come from.
The answer is that in 1992, the RIAA came to Congress in a state of panic. Digital Audio Tape was about to hit the market, and according to the RIAA, the entire recording industry was about to be destroyed! (sound familiar?) The RIAA wanted to destroy DAT, and they decided that they best way to do it would be to require SCMS (Serial Copy Management System) copy protection hardware on all DAT recorders. SCMS is basically a two-stage copy protect flag. It lets you make a copy of a DAT, but not a copy of that copy.
While they were at it, the RIAA got Congress to toss in those mandatory royalty payments on blank media. Those few of us who were using DAT tapes for our own purposes -- taping our own bands, or taping Grateful Dead concerts -- were outraged. From now on, aspiring musicians who wanted to make professional quality recordings of their own songs would be required to pay an "RIAA tax" for the privilege of doing so. Hell, none of us ever noticed paragraph 1008. It never occurred to us what it meant and what the ramifications of it were. Turns out the American public received an incredible bargain, while the RIAA was busy writing what it considered as nothing more then a new law designed to kill DAT technology.
Congress had noticed a problem... if consumers were to henceforth pay royalties on blank digital audio media directly to the recording industry, to compensate for personal, non-commercial copying of music CDs, then Congress would have to fully legalize and protect the activity that it was now collecting royalties on.
There are certain laws, such as excessive taxes on marijuana, that are designed to function as a punitive measure, but this tax is obviously not one of them. Congress was tired of the RIAA running to them in a panic whenever a new recording technology came out, and wanted to establish a law once and for all -- a law that would cover all existing and future technologies.
Both Congress and the RIAA presented this law to the public as the "enabling legislation" that would break the legal logjam, and bring digital audio recording to the masses. Of course, once the law was passed, DAT faded into the background, and this law was mostly forgotten, except of course by the RIAA companies, who have quietly collected the royalties for eight years now.
The only thing that has changed since the law was written and passed eight years ago, is that the internet has finally made it possible for consumers to realize the benefits of the AHRA, instead of just the RIAA benefiting from the AHRA, and boy is the RIAA mad about that.
And more importantly, why the hell is money going to the RIAA for the CDRs I purchased to back up my programs, pictures and email?
The royalties are only collected on media that are branded for audio use. Most CDRs are branded for data storage, so they are not subject to the royalty requirements. Ironically, DAT tapes and DDS cartridges are identical; except that DDS cartridges are of slightly higher quality and cost a little less, so even DAT users can easily avoid paying the "RIAA tax" on their media if they so choose, or if, as is more commonly the case, they are simply unable to find DAT blanks because the RIAA has so successfully buried the medium in the semi-professional market.
This law is already out of date. There are so many more uses for CDR and CD-RW beyond music recording.
But the law only applies to recorders and media that are branded as audio recording devices and media. If you want to store video files on CDRs, simply purchase data CDRs, and you won't pay the RIAA royalty. If you are feeling guilty about downloading from Napster, then store your MP3s on audio branded media, and the RIAA companies will receive a royalty payment.
Ah, but Napster doesn't distribute files. Napster's users share files with each other. Big difference.
Back to the paragraph in question, Paragraph 1008:
No action may be brought under this title [Title 17, Copyright Law] 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.
The issue before the court was whether Napster is liable for contributory infringement -- i.e. are they operating a service that other people -- their users -- are using to break the law?
The answer is, no. The activities of Napster's users are fully protected by the AHRA.
Hence, if there is no infringement taking place, there can be no contributory infringement.
Wow! What a little bundle of misinformation and lies you found!
Well, the RIAA certainly doesn't want you to know your rights. However, even if you don't know your rights, you still have to pay the CDR and DAT royalties, so you might as well know.
Rather than explain it myself, here is a quote from the 9th Circuit Court of Appeals, in the document in which they reversed the injunction against Napster. They do a good job of explaining the distinction:
The court reached its conclusion that Napster users were engaged in direct infringement in part because
o it ruled (contrary to the section's express terms) that the immunity from suit provided by 17 USC 1008 only applied to actions under the AHRA.
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers. (1)
(1) The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA's serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008
permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 "protects all noncommercial copying by consumers of digital and analog musical recordings" (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.
No matter what you say about these kind of tax policies, they are fairly common. What is even more sad is they arise out of a genuine concern and a desire to do what is right.
Haha.
The U.S. version of this law, the Audio Home Recording Act, was drafted by the recording industry with the specific goal of destroying the market for home digital audio recorders.
The US gov't does not, and never has, collected any "taxes" that are distributed to artists as royalties. Period, end of story.
Makers of Music Minidisc, DAT Music Tapes, and Music CD-R discs for sale in the US do throw money into the music industry, but it's the same corporate channels that already existed for music royalties.
Sorry, but your information is eight years out of date. Read Title 17 Chapter 10 if you don't believe me.
Since 1992, the U.S. Government has collected a royalty on all blank digital audio recorders and blank digital audio media manufactured in or imported into the United States, and handed the money directly over to the RIAA companies.
The money collected is, as mandated by federal law, divided as follows:
(1.75%) of the royalties are paid to the American Federation of Musicians, to be paid to "non-featured" musicians (studio musicians)
(0.92%) of the royalties are paid to the American Federation of Television and Radio Artists, to be paid to "non-featured" vocalists (backup vocalists)
(25.60%) of the royalties are paid to "featured recording artists", including such bands as Metallica.
(38.40%) of the royalties are paid to "copyright owners" (the RIAA companies)
(16.67%) of the royalties are paid to "music publishers"
(16.67%) of the royalties are paid to music writers, including such bands as Metallica who write their own songs.
This is completely above and beyond the other systems of royalty payments, such as ASCAP, BMI, where the copyright owners go after businesses to get them to sign licensing agreements. In this case, the royalty fee collection system is part of Federal Law.
Incidently, if you're curious as to why downloading from Napster is not illegal, or immoral, read paragraph 1008. This is what you, the consumer got in exchange for a federal law mandating direct payments from your wallet to the RIAA whenever you buy a blank audio CDR.
Levys on recording media have had a mixed success in various countries, but to my knowledge the question of how such a levy changes the rights of the purchaser has never been addressed.
I assume you're asking if using some kind of "virtual machine" technology such as VMware degrades performance due to the fact the OS isn't accessing the hardware directly.
This entirely depends, and I have a great example from back in my VM/ESA system programmer days.
Let's say you have an operating system that works very well when it has enough memory to keep everything in storage, but performs poorly when it has to page/swap out tasks.
Now you run it under a virtual machine program that is very, very efficient at paging/swapping.
You can, and often do, get better performance this way than if you were running the virtualized operating system on the bare hardware.
We ran MVS under VM this way. The real machine had 32 megs of storage. (this was a while back.) By running MVS under VM, and giving the MVS machine a virtual storage size of 128 megs, the VM software smoothly paged, the MVS software never entered its paging routines, and we realized a substantial performance improvement. The combined system actually used less CPU and performed less I/O then the MVS system alone.
Another situation is where the virtual machine environment has access to resources that the virtualized operating systems don't. A year or so after we put MVS under VM, we purchased a new mainframe with "expanded storage" -- a chunk of high-speed RAM that is tightly connected to the processor -- you use it for first level paging. i.e. When you page data out to disk, instead of writing it directly to the swap space, instead you find the oldest page in expanded storage and write that page out to disk, then page the block into expanded storage.
Thrashing is typically caused by rapid page out/in combinations. You page something out, then decide you need it again immediately, but you have to wait for the disk to come around again.
Even though our MVS kernel was written before expanded storage hardware was invented, we were able to use it to improve MVS performance; another example of how a well designed, well balanced virtual machine supervisor can improve the performance of the machines it supervises above and beyond their bare-iron performance.
I think the company feelings about this issue are quite valid. Someone should have contacted the company directly before just going out and doing directly without permission.
Oh yes, and that Linus fellow should have written notes to Intel and all the computer manufacturers, and asked them nicely if they would mind if he wrote a free operating system using their hardware, so that he wouldn't have to use his copy of Windows. Had they said "no", he should have just gone off and played video games instead of stealing other people's IP by writing his own software to use their hardware.
More like you give away a bread machine with your own book of recipes, requiring your own brand of flour, yeast, etc, then scream bloody murder when someone else writes a book of bread machine recipes that use your free bread machines, but don't require your marked-up ingredients.
People here don't take kindly to blustering, vague, ill-defined complaints about "Intellectual Property", especially when the company doing the complaining can't seem to make their fingers spell out just what intellectual property they are talking about in the first place! Slashdot is chock full of IP war veterans, and many of us do know our rights.
Intellectual property consists of:
o Copyrights
o Patents
o Trade secrets
o Trademarks
Can't be copyright infringement, because the drivers don't use their software. As a matter of fact, the safest approach at the moment appears to be to throw their software away unopened, to avoid being subject to their restrictive license.
If there is patent infringement, what is the patent number?
If an exclusive-or is the trade secret, then sorry, but it was reverse engineered, and is no longer a trade secret. It is now in the public domain. The DMCA doesn't help them because the bar coder doesn't control access to a copyrighted work.
Perhaps they have trademark issues? They assert:
By posting our IP to the Net the Linux Community has forced us into a position of having to legally defend our technology . Under IP law if we don't PROTECT our IP, we loose any remedies under law to PROTECT our IP.
Trademarks are the only type of IP with this requirement. If they are having issues with the open source drivers saying "cuecat", then they should just SAY SO and I'm sure that we could come up with a brand new name for the drivers that imply no public association with the people who developed the Radio Shack software.
To Digital Convergence:
Where's the beef? What's the IP you are complaining about? Why are you so vague, or do you have no case and are just bluffing? Consider your bluff called. What the hell are you talking about? Please provide details if you want to be taken seriously.
American copyright is perpetual under a loophole in the Constitution: copyright is supposed to last "for limited times" but nothing in the Constitution takes away Congress's right to extend the terms of those rights retroactively whenever they are about to expire Sonny Bono Act.
And a large fraction of contracts require the authors to sign over all rights to the publisher (often an RIAA/MPAA/etc. member).
That's a problem arising from the fact that the record labels have, up until now, had a stranglehold on the entire music distribution chain. If you wanted to be published, the price was the same no matter which label you went to -- you had to give them your copyrights. Newer internet labels like mp3.com don't demand your copyrights in exchange for being published -- just a percent of the profits. Napster, of course, doesn't demand anything in exchange for publishing your work, should you choose to publish your work that way.
You'll notice that one of their demands is for the physical address of the person who posted the copy of DeCSS. Once you do this, they can then send you an actual cease and desist order, instead of an email that carries no force of law.
Any letter from you to them can only provide them with ammunition. Any communication from you whatsoever should be from your lawyer, not you personally. You simply cannot benefit.
Well, I'm assuming that any band that seeks to successfully self-promote by opening their live performances to tapers has already made the decision that they are good enough concert performers that the tapes will attract listeners instead of repel them. Otherwise, you're right. What's the point? I never said that audience taping was good for all bands, although most modern bands tend to learn their chops by playing out, because that's how you get noticed in the first place. How many bands get signed these days by sending a studio demo tape to a label, without first performing live?
I agree that there have been plenty of excellent studio bands with spotty, mediocre, or practically non-existant concert track records. The Beatles come to mind. Steely Dan. Likewise, there are plenty of bands that rock out in concert, but sound lame on CD.
You missed the fact that Napster is firmly grounded in the 1992 Audio Home Recording Act.
In 1992, in exchange for mandatory "royalty" payments on all digital audio recorders and digital audio recording media, Congress created a law that defined all non-commercial copying of audio recordings as non-infringing.
That's right, every time you buy a blank audio CDR, a small percentage of your money is collected by the government and distributed to the music industry. In exchange, congress legalized all non-commercial copying of music, using any method, on any media, to settle the issue once and for all. One of the main purposes of the AHRA was to end the practice of the recording industry running to Congress for new protection every time a new technology was invented.
Just in case you feel guilty about artists not being paid, here is a table that shows how your money is divided up by the recording industry every time you buy a blank audio CD or an audio CD recorder:
(1.75%) of the royalties are paid to the American Federation of Musicians, to be paid to "non-featured" musicians (studio musicians)
(0.92%) of the royalties are paid to the American Federation of Television and Radio Artists, to be paid to "non-featured" vocalists (backup vocalists)
(25.60%) of the royalties are paid to "featured recording artists", including such bands as Metallica. (38.40%) of the royalties are paid to "copyright owners" (the RIAA companies)
(16.67%) of the royalties are paid to "music publishers"
(16.67%) of the royalties are paid to music writers, including such bands as Metallica who write their own songs.
Here is one of my previous postings regarding the AHRA which goes into more detail on what the AHRA is and why Napster is both completely legal and completely within the spirit of the law as well as the letter.
Here is a superb, although somewhat densely written essay by L. Ray Patterson, Professor of Law at the University of Georgia, detailing the history of copyright from 1556 through the present, with respect to what the phrase "the exclusive Right" in the U.S. Constitution means, and discussing the problems with modern copyright law -- the same problems that are discussed here on a daily basis, but with a historical perspective that is largely missing in these threads.
As Detritus said, Copyright was originally created to promote censorship and create a publishing monopoly. English copyright was perpetual, and only publishers were granted copyright -- not authors. A publisher could take any text he wanted to, even a public domain text, publish it, and claim exclusive copyright. Copyright at this time was completely understood to be a monopoly for the sole benefit of book publishers, and not an instrument of social progress.
In 1664, support for this system waned, and the laws were allowed to expire. To simplify the story, seeking to regain their monopoly, the book publishers tried a new tactic -- promoting copyright instead as an instrument to benefit authors. The resulting 1710 law, the Statute of Anne, was the first copyright law that recognized, in a limited form, the authors of a work as the proper beneficiary of copyright, not the publisher. United States copyright law is based on this principle.
I'm including two somewhat lengthy quotes from the paper, both to encourage people to read it, and because it sheds light on many of the hottest current copyright issues -- the behavior of the MPAA and RIAA in relationship to artists and with respect to copyright on the internet, the DMCA, and the emerging systems of "pay per use" for printed materials -- i.e. digital books that charge you to read them.
The freedom to learn is a natural-law right and the materials of learning are a necessary condition for the exercise of that right. Even if we say copyright has a natural-law basis, the benefit to the author is a reward to induce the author to make his or her writings public so that others may enjoy their natural-law right of learning. Copyright thus is, and can be, only a positive-law concept, for only a positive-law concept can serve to mediate two natural-law rights.
The Copyright Clause makes the point by recognizing the natural-law right of the people to learn as well as the natural-law right of the author to gain a profit. Thus, we come to the fundamental point. Copyright, whatever its basis, cannot co-exist as a natural-law right in a society where learning is a natural-law right and the public domain has a natural-law basis. Therefore, American copyright must be-as the framers intended-a positive-law concept, a legislative grant of limited rights conditioned on the author's making his or her writing available to the public. This principle was acknowledged in the Resolution of the Continental Congress, implied in the Copyright Clause, and adopted by the United States Supreme Court in Wheaton. This is why the copyright statutes do "not provide for the continuation of the common-law [i.e., natural-law] right, but under constitutional authority, created a new [statutory] right." The most important natural-law right of the Copyright Clause is not the right of the author to gain a profit, but the right of the people to learn: The future of a society is determined by the learning of its citizens.
The second quote is a little bit off topic for this thread, but it addresses the question as to what is wrong with laws like the DMCA that grant publishers the right to control the use of copyrighted works after publication:
The separation principle-the copyright and a copy of the work are separate legal entities subject to separate ownership, and both are separate from the work, which can be owned by no one-is a corollary of the limited-grant principle. The Supreme Court's most famous statement of this principle is found in Baker v. Selden,[72] which established the rule that copyright cannot protect ideas, and therefore the copyright is separate from the work. The Supreme Court's most definitive statement of the separation principle was, however, in American Tobacco Co. v. Werckmeister, in which the Court said that it was not the "physical thing created (the copy), but the right of printing, publishing, copying, etc., which is within statutory protection."
The crucial relevance of the separation principle is that no one can own the work. The copyright of a work and a copy of that work can be owned by different persons, and this difference in ownership is the essence of copyright. As the Supreme Court in Werckmeister stated, copyright "grows out of the recognition of the separate ownership of the right of copying from that which inheres in the mere physical control of the thing itself." Thus, the copyright and the copy in which the work is embodied "are distinct subjects of property, each capable of existing and being owned and transferred independent of the other."
The separation principle is thus fundamental to copyright law. The principle tells courts (and copyright owners) to distinguish: (1) the existence of the copy from the existence of the copyright; (2) the ownership of the copy from the ownership of the copyright; and (3) the use of the copy from the use of the copyright. These distinctions flow from the fact that copyright is an instrument to encourage copyright owners to distribute copies of the work in order to promote learning, not an instrument to control use of the copies after they have been distributed.
The publishing industries are attempting, through the DMCA, to reverse 300 years of copyright progress -- to return to copyright as an instrument to enforce publishing monopolies, instead of an instrument to promote learning by providing an incentive for authors to create a public benefit by openly publishing copies of the works they create. Hence the creation of inaccurate, misleading terms like "copyright protection."
Once again, I highly recommend taking the time to read the paper.
or moe. or String Cheese Incident, or the Allman Brothers Band, or Charlie Hunter, or any of the Grateful Dead offshoot bands, or any of dozens and dozens of bands.
Many newer bands have gotten the message that allowing audience taping is the cheapest (read free) form of self promotion in existance. Audience taping creates loyal fans, and once you have loyal fans, the money follows. Anyone who goes through all the trouble of lugging $10,000 worth of taping gear to your shows is probably going to be first in line when your new album goes on sale, or first at the ticketmaster window when your next show goes on sale; and people who trade live recordings and listen to them are devoting their attention to YOUR band instead of the RIAA-promoted radio bands, and are more likely to show up at the record store or concert venue as a result.
Slashdot Mirror
er, the section you found outlaws the making of "bootleg" recordings without the permission of the artist -- bringing a microphone and tape recorder to a concert.
Anyway, Chapter 11 of Title 17 is still part of Title 17, and Section 1008 immunizes consumers against any actions "under this title", so I'm not following your logic.
That was the RIAA's goal, not Congress' goal. As it turned out, Congress added paragraph 1008 and made the AHRA very consumer friendly, by legalizing all non-commercial copying of music.
That would make them guilty of contributory infringement -- aiding and abetting crimes being committed by its users.
However, the activities of Napster's users are protected by the AHRA, which specifically disallows any actions based on non-commercial copying of music by consumers.
No infringement, no contributory infringement.
Do you see any mention of digital audio copied recording? I sure don't.
It's there.
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.
The Court of Appeals that reversed the Napster injunction decided that "such a device or medium" includes any device that can hold music recordings, not just the small subset of devices and media branded and intended specifically for recording music that are subject to the AHRA's SCMS and royalty requirements, and specifically, that hard drives are just as protected as audio CDRs.
As far as I can tell, this section would in no way protect Napster or Napster users.
... if consumers were to henceforth pay royalties on blank digital audio media directly to the recording industry, to compensate for personal, non-commercial copying of music CDs, then Congress would have to fully legalize and protect the activity that it was now collecting royalties on.
Ah, but Napster's users are making non-commercial recordings of music files, and making non-commercial recordings is protected by the AHRA.
Since Napster's users are engaging in non-infringing activity, Napster cannot be contributing to copyright infringement, because there is no infringement!
But this does open up a whole new can of worms. If I have the Fair Use rights for music, movies, etc that I legally purchase, why the hell am I paying a tax on a medium that I use for non-commercial, personal duplication?
First off, this law only applies to copyrighted audio works, not movies.
Secondly, the AHRA does not provide a fair-use defense. The AHRA provides something much, much stronger. It provides a statutory excemption from copyright infringement. This is very, very different. With Fair Use, the court is required to consider exactly how you are using the music, and decide whether it is fair or not. With Paragraph 1008, the only issue before the court is whether or not the consumer's use of Napster is non-commercial in nature. Not Napster itself, but the consumer's use of Napster.
You ask a good question though. Why does this tax exist? Where the hell did it come from.
The answer is that in 1992, the RIAA came to Congress in a state of panic. Digital Audio Tape was about to hit the market, and according to the RIAA, the entire recording industry was about to be destroyed! (sound familiar?) The RIAA wanted to destroy DAT, and they decided that they best way to do it would be to require SCMS (Serial Copy Management System) copy protection hardware on all DAT recorders. SCMS is basically a two-stage copy protect flag. It lets you make a copy of a DAT, but not a copy of that copy.
While they were at it, the RIAA got Congress to toss in those mandatory royalty payments on blank media. Those few of us who were using DAT tapes for our own purposes -- taping our own bands, or taping Grateful Dead concerts -- were outraged. From now on, aspiring musicians who wanted to make professional quality recordings of their own songs would be required to pay an "RIAA tax" for the privilege of doing so. Hell, none of us ever noticed paragraph 1008. It never occurred to us what it meant and what the ramifications of it were. Turns out the American public received an incredible bargain, while the RIAA was busy writing what it considered as nothing more then a new law designed to kill DAT technology.
Congress had noticed a problem
There are certain laws, such as excessive taxes on marijuana, that are designed to function as a punitive measure, but this tax is obviously not one of them. Congress was tired of the RIAA running to them in a panic whenever a new recording technology came out, and wanted to establish a law once and for all -- a law that would cover all existing and future technologies.
Both Congress and the RIAA presented this law to the public as the "enabling legislation" that would break the legal logjam, and bring digital audio recording to the masses. Of course, once the law was passed, DAT faded into the background, and this law was mostly forgotten, except of course by the RIAA companies, who have quietly collected the royalties for eight years now.
The only thing that has changed since the law was written and passed eight years ago, is that the internet has finally made it possible for consumers to realize the benefits of the AHRA, instead of just the RIAA benefiting from the AHRA, and boy is the RIAA mad about that.
And more importantly, why the hell is money going to the RIAA for the CDRs I purchased to back up my programs, pictures and email?
The royalties are only collected on media that are branded for audio use. Most CDRs are branded for data storage, so they are not subject to the royalty requirements. Ironically, DAT tapes and DDS cartridges are identical; except that DDS cartridges are of slightly higher quality and cost a little less, so even DAT users can easily avoid paying the "RIAA tax" on their media if they so choose, or if, as is more commonly the case, they are simply unable to find DAT blanks because the RIAA has so successfully buried the medium in the semi-professional market.
This law is already out of date. There are so many more uses for CDR and CD-RW beyond music recording.
But the law only applies to recorders and media that are branded as audio recording devices and media. If you want to store video files on CDRs, simply purchase data CDRs, and you won't pay the RIAA royalty. If you are feeling guilty about downloading from Napster, then store your MP3s on audio branded media, and the RIAA companies will receive a royalty payment.
Your ethics, your choice.
Ah, but Napster doesn't distribute files. Napster's users share files with each other. Big difference.
Back to the paragraph in question, Paragraph 1008:
No action may be brought under this title [Title 17, Copyright Law] 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.
The issue before the court was whether Napster is liable for contributory infringement -- i.e. are they operating a service that other people -- their users -- are using to break the law?
The answer is, no. The activities of Napster's users are fully protected by the AHRA.
Hence, if there is no infringement taking place, there can be no contributory infringement.
The royalties are only 2% of the import price for recorders, and 3% of the import price for media, much less than wherever you got your figures from.
Wow! What a little bundle of misinformation and lies you found!
Well, the RIAA certainly doesn't want you to know your rights. However, even if you don't know your rights, you still have to pay the CDR and DAT royalties, so you might as well know.
Rather than explain it myself, here is a quote from the 9th Circuit Court of Appeals, in the document in which they reversed the injunction against Napster. They do a good job of explaining the distinction:
The court reached its conclusion that Napster users were engaged in direct infringement in part because
o it ruled (contrary to the section's express terms) that the immunity from suit provided by 17 USC 1008 only applied to actions under the AHRA.
o it ruled that 17 USC 1008's protections only applied to copying by specifically identified devices rather than, as this Court said in RIAA v. Diamond Multimedia Syst., Inc., 180 F.3d 1072 (9 th Cir. 1999), to all noncommercial copying by consumers. (1)
(1) The court relied on the fact that this Court in Diamond Multimedia had held (in the context of the AHRA's serial copying and royalty provisions) that digital audio recording device did not include computer hard-drives. The court below ignored, however, that 17 U.S.C. 1008
permits non-commercial copying by consumers using either analog or digital audio recording devices or "such a device"; that the legislative history makes clear that Congress intended by that language to immunize all non-commercial copying of music by consumers; that the same Diamond Multimedia Court expressly said that 17 U.S.C. 1008 "protects all noncommercial copying by consumers of digital and analog musical recordings" (180 F.3d at 1079); and that throughout the Diamond Multimedia opinion the Court discusses copying of music using computer hard-drives as AHRA protected activity.
No, I'd say it was open source, but not Free in the "free-speech" sense.
Thanks for the information. I didn't know that!
No matter what you say about these kind of tax policies, they are fairly common. What is even more sad is they arise out of a genuine concern and a desire to do what is right.
Haha.
The U.S. version of this law, the Audio Home Recording Act, was drafted by the recording industry with the specific goal of destroying the market for home digital audio recorders.
Do what is right, my ass.
The US gov't does not, and never has, collected any "taxes" that are distributed to artists as royalties. Period, end of story.
Makers of Music Minidisc, DAT Music Tapes, and Music CD-R discs for sale in the US do throw money into the music industry, but it's the same corporate channels that already existed for music royalties.
Sorry, but your information is eight years out of date. Read Title 17 Chapter 10 if you don't believe me.
Since 1992, the U.S. Government has collected a royalty on all blank digital audio recorders and blank digital audio media manufactured in or imported into the United States, and handed the money directly over to the RIAA companies.
The money collected is, as mandated by federal law, divided as follows:
(1.75%) of the royalties are paid to the American Federation of Musicians, to be paid to "non-featured" musicians (studio musicians)
(0.92%) of the royalties are paid to the American Federation of Television and Radio Artists, to be paid to "non-featured" vocalists (backup vocalists)
(25.60%) of the royalties are paid to "featured recording artists", including such bands as Metallica.
(38.40%) of the royalties are paid to "copyright owners" (the RIAA companies)
(16.67%) of the royalties are paid to "music publishers"
(16.67%) of the royalties are paid to music writers, including such bands as Metallica who write their own songs.
This is completely above and beyond the other systems of royalty payments, such as ASCAP, BMI, where the copyright owners go after businesses to get them to sign licensing agreements. In this case, the royalty fee collection system is part of Federal Law.
Incidently, if you're curious as to why downloading from Napster is not illegal, or immoral, read paragraph 1008. This is what you, the consumer got in exchange for a federal law mandating direct payments from your wallet to the RIAA whenever you buy a blank audio CDR.
Levys on recording media have had a mixed success in various countries, but to my knowledge the question of how such a levy changes the rights of the purchaser has never been addressed.
The question has been addressed by the U.S. Congress. When they passed the Audio Home Recording Act, in which the government collects mandatory royalties on all digital audio recorders and all blank digital audio media, Congress gave all consumers the complete, absolute, unlimited right to copy any and all digital audio recordings, so long as the copying is for non-commercial purposes. Read it yourself.
This is a sort of half-assed, secondary argument by the Napster legal team. It carried no weight with the appeals court that has taken over the case.
Napster's winning card is the fact that Congress legalized all non-commercial copying of music by consumers using any digital or analog recording device in 1992, in exchange for mandatory "royalty" payments to the music industry whenever you purchase any blank digital audio recorder or media. Napster's defense is not based on fair use -- it's based on a statutory exception that defines all non-commercial copying as non-infringing. Hence, if Napster's users are not infringing copyrights, then Napster cannot be contributing to said non-existant infringement.
I assume you're asking if using some kind of "virtual machine" technology such as VMware degrades performance due to the fact the OS isn't accessing the hardware directly.
This entirely depends, and I have a great example from back in my VM/ESA system programmer days.
Let's say you have an operating system that works very well when it has enough memory to keep everything in storage, but performs poorly when it has to page/swap out tasks.
Now you run it under a virtual machine program that is very, very efficient at paging/swapping.
You can, and often do, get better performance this way than if you were running the virtualized operating system on the bare hardware.
We ran MVS under VM this way. The real machine had 32 megs of storage. (this was a while back.) By running MVS under VM, and giving the MVS machine a virtual storage size of 128 megs, the VM software smoothly paged, the MVS software never entered its paging routines, and we realized a substantial performance improvement. The combined system actually used less CPU and performed less I/O then the MVS system alone.
Another situation is where the virtual machine environment has access to resources that the virtualized operating systems don't. A year or so after we put MVS under VM, we purchased a new mainframe with "expanded storage" -- a chunk of high-speed RAM that is tightly connected to the processor -- you use it for first level paging. i.e. When you page data out to disk, instead of writing it directly to the swap space, instead you find the oldest page in expanded storage and write that page out to disk, then page the block into expanded storage.
Thrashing is typically caused by rapid page out/in combinations. You page something out, then decide you need it again immediately, but you have to wait for the disk to come around again.
Even though our MVS kernel was written before expanded storage hardware was invented, we were able to use it to improve MVS performance; another example of how a well designed, well balanced virtual machine supervisor can improve the performance of the machines it supervises above and beyond their bare-iron performance.
Counterintuitive, but true!
I think the company feelings about this issue are quite valid. Someone should have contacted the company directly before just going out and doing directly without permission.
Oh yes, and that Linus fellow should have written notes to Intel and all the computer manufacturers, and asked them nicely if they would mind if he wrote a free operating system using their hardware, so that he wouldn't have to use his copy of Windows. Had they said "no", he should have just gone off and played video games instead of stealing other people's IP by writing his own software to use their hardware.
No difference here.
I know that they will say encryption was broken under the DMCA
The DMCA only covers systems that control access to a copyrighted work, not all encryption systems.
People here don't take kindly to blustering, vague, ill-defined complaints about "Intellectual Property", especially when the company doing the complaining can't seem to make their fingers spell out just what intellectual property they are talking about in the first place! Slashdot is chock full of IP war veterans, and many of us do know our rights.
Intellectual property consists of:
o Copyrights
o Patents
o Trade secrets
o Trademarks
Can't be copyright infringement, because the drivers don't use their software. As a matter of fact, the safest approach at the moment appears to be to throw their software away unopened, to avoid being subject to their restrictive license.
If there is patent infringement, what is the patent number?
If an exclusive-or is the trade secret, then sorry, but it was reverse engineered, and is no longer a trade secret. It is now in the public domain. The DMCA doesn't help them because the bar coder doesn't control access to a copyrighted work.
Perhaps they have trademark issues? They assert:
Trademarks are the only type of IP with this requirement. If they are having issues with the open source drivers saying "cuecat", then they should just SAY SO and I'm sure that we could come up with a brand new name for the drivers that imply no public association with the people who developed the Radio Shack software.
To Digital Convergence:
Where's the beef? What's the IP you are complaining about? Why are you so vague, or do you have no case and are just bluffing? Consider your bluff called. What the hell are you talking about? Please provide details if you want to be taken seriously.
American copyright is perpetual under a loophole in the Constitution: copyright is supposed to last "for limited times" but nothing in the Constitution takes away Congress's right to extend the terms of those rights retroactively whenever they are about to expire Sonny Bono Act.
I completely agree. That's an entirely different battle which is being faught right now.
And a large fraction of contracts require the authors to sign over all rights to the publisher (often an RIAA/MPAA/etc. member).
That's a problem arising from the fact that the record labels have, up until now, had a stranglehold on the entire music distribution chain. If you wanted to be published, the price was the same no matter which label you went to -- you had to give them your copyrights. Newer internet labels like mp3.com don't demand your copyrights in exchange for being published -- just a percent of the profits. Napster, of course, doesn't demand anything in exchange for publishing your work, should you choose to publish your work that way.
You'll notice that one of their demands is for the physical address of the person who posted the copy of DeCSS. Once you do this, they can then send you an actual cease and desist order, instead of an email that carries no force of law.
Any letter from you to them can only provide them with ammunition. Any communication from you whatsoever should be from your lawyer, not you personally. You simply cannot benefit.
Well, I'm assuming that any band that seeks to successfully self-promote by opening their live performances to tapers has already made the decision that they are good enough concert performers that the tapes will attract listeners instead of repel them. Otherwise, you're right. What's the point? I never said that audience taping was good for all bands, although most modern bands tend to learn their chops by playing out, because that's how you get noticed in the first place. How many bands get signed these days by sending a studio demo tape to a label, without first performing live?
I agree that there have been plenty of excellent studio bands with spotty, mediocre, or practically non-existant concert track records. The Beatles come to mind. Steely Dan. Likewise, there are plenty of bands that rock out in concert, but sound lame on CD.
You missed the fact that Napster is firmly grounded in the 1992 Audio Home Recording Act.
In 1992, in exchange for mandatory "royalty" payments on all digital audio recorders and digital audio recording media, Congress created a law that defined all non-commercial copying of audio recordings as non-infringing.
That's right, every time you buy a blank audio CDR, a small percentage of your money is collected by the government and distributed to the music industry. In exchange, congress legalized all non-commercial copying of music, using any method, on any media, to settle the issue once and for all. One of the main purposes of the AHRA was to end the practice of the recording industry running to Congress for new protection every time a new technology was invented.
Just in case you feel guilty about artists not being paid, here is a table that shows how your money is divided up by the recording industry every time you buy a blank audio CD or an audio CD recorder:
(1.75%) of the royalties are paid to the American Federation of Musicians, to be paid to "non-featured" musicians (studio musicians)
(0.92%) of the royalties are paid to the American Federation of Television and Radio Artists, to be paid to "non-featured" vocalists (backup vocalists)
(25.60%) of the royalties are paid to "featured recording artists", including such bands as Metallica.
(38.40%) of the royalties are paid to "copyright owners" (the RIAA companies)
(16.67%) of the royalties are paid to "music publishers"
(16.67%) of the royalties are paid to music writers, including such bands as Metallica who write their own songs.
Here is one of my previous postings regarding the AHRA which goes into more detail on what the AHRA is and why Napster is both completely legal and completely within the spirit of the law as well as the letter.
As Detritus said, Copyright was originally created to promote censorship and create a publishing monopoly. English copyright was perpetual, and only publishers were granted copyright -- not authors. A publisher could take any text he wanted to, even a public domain text, publish it, and claim exclusive copyright. Copyright at this time was completely understood to be a monopoly for the sole benefit of book publishers, and not an instrument of social progress.
In 1664, support for this system waned, and the laws were allowed to expire. To simplify the story, seeking to regain their monopoly, the book publishers tried a new tactic -- promoting copyright instead as an instrument to benefit authors. The resulting 1710 law, the Statute of Anne, was the first copyright law that recognized, in a limited form, the authors of a work as the proper beneficiary of copyright, not the publisher. United States copyright law is based on this principle.
I'm including two somewhat lengthy quotes from the paper, both to encourage people to read it, and because it sheds light on many of the hottest current copyright issues -- the behavior of the MPAA and RIAA in relationship to artists and with respect to copyright on the internet, the DMCA, and the emerging systems of "pay per use" for printed materials -- i.e. digital books that charge you to read them.The second quote is a little bit off topic for this thread, but it addresses the question as to what is wrong with laws like the DMCA that grant publishers the right to control the use of copyrighted works after publication:The publishing industries are attempting, through the DMCA, to reverse 300 years of copyright progress -- to return to copyright as an instrument to enforce publishing monopolies, instead of an instrument to promote learning by providing an incentive for authors to create a public benefit by openly publishing copies of the works they create. Hence the creation of inaccurate, misleading terms like "copyright protection."
Once again, I highly recommend taking the time to read the paper.
- John
or moe. or String Cheese Incident, or the Allman Brothers Band, or Charlie Hunter, or any of the Grateful Dead offshoot bands, or any of dozens and dozens of bands.
Many newer bands have gotten the message that allowing audience taping is the cheapest (read free) form of self promotion in existance. Audience taping creates loyal fans, and once you have loyal fans, the money follows. Anyone who goes through all the trouble of lugging $10,000 worth of taping gear to your shows is probably going to be first in line when your new album goes on sale, or first at the ticketmaster window when your next show goes on sale; and people who trade live recordings and listen to them are devoting their attention to YOUR band instead of the RIAA-promoted radio bands, and are more likely to show up at the record store or concert venue as a result.