Are you telling me that basically all p2p network usefulness arises from transfers of copyrighted material.
No, but if it's impossible to tell if you're breaking the law or not, caution requires that you refrain from using it at all.
Since you cannot guarantee that the work you are downloading is not copyrighted or licensed for redistribution, you cannot guarantee that the act of downloading it is legal.
And how does this interpretation expand to the web? If someone gives you a URL, and you visit that URL and retrieve a copyrighted work that was not legally made available at that URL, you're now guilty of copyright infringement? Everything about the Internet is now suspect.
With interpretations like this, it sounds like DRM is the only thing that can save it.
1. District Court made express finding of underlying infringement by dowloading into browser and then disk. This was affirmed by the 9th Circuit. 3. This isn't close to unsettled -- there are several p2p judgments already on the books, each relying on a finding of direct infringement.
There might be some miscommunication here, or perhaps I'm just having trouble locating this in either the District Court's or the 9th Circuit's decisions.
I can find plenty of mention that copyright infringement has occurred since an upload/download has taken place, which results in a near-perfect reproduction of the original. I can not, however, find any discussion about which side of the transaction is ultimately responsible for the duplication (and thus the infringement), only that infringement has occurred. (And the fact that infringement has occurred is ultimately all that's necessary to proceed with the action against Napster; which party is irrelevant). The only thing I can find is that statement by the 9th Circuit that summarized, in passing, that downloaders were infringing the right of reproduction. This doesn't seem to be supported by the District Court's findings or decision.
I don't mean to be going back and forth about this. I would be very interested in seeing the actual argument and conclusion here that found the downloader was guilty of the reproduction (especially any cases where an action was brought against them merely for that download, which is kind of what this thread is about).
I guess I can concede at this point that there is a high likelyhood that in the US, a downloader can indeed be considered an infringer. This really seems counter-intuitive to me (and I'm very much used to laws and interpretations seeming intuitive to me), but the seed is certainly there. This is actually somewhat scary, since any viewing whatsoever by the end user is considered an infringement. If I view a copyrighted work online that someone else posted on a web page (text, whatever), I am infringing copyright. This just seems exceptionally wrong.
But only because it was viewable on the screen and usable in that form. In the case of an online download, the data in RAM is not viewable/usable in that form. It's strictly there to facilitate being written to disk. These are not two copies, they are one transient impression in the process of being written to disk. The only thing the user can see, interact with or otherwise use (copy!) is the version on disk.
Whether or not the image in memory is usable in that form is at the heart of whether or not it's "transient".
Is it your obligation at this point to call up both distillers
I would trust that the bartender knows what he's doing. If I consumed something that put me in the hospital (or killed me), it probably wasn't legal for the bartender to serve it to me, so you bet I would go after him. You seem to be overlooking the server's role in this.
I'm not going to whip out my alcohol/toxin detection kit to ensure that what I'm being served is safe and legal. Or are you suggesting that by being "ignorant" of what I'm requesting I deserve what I get?
Ignorance is no excuse and generally even less of a defence especially if you are willfully ignorant.
I won't dispute this, but this interpretation does eliminate all usefulness from P2P networks. You cannot verify that anything you receive won't draw a civil action against you. The interpretation goes past several "common sense" lines that I think even a judge would respect.
Also check out this gem [cornell.edu] in the US copyright law that seems to give end-users an "out" here as well. If I understand it correctly, a copyright holder can't take action against an infringer if that infringer is simply making his own (digital, even) recording.
After doing some more research on this, a computer wouldn't qualify as a recording device here, since that's not a computer's primary purpose. So this isn't an "out".
This is a good point, and it basically can be summed up by holding the person that substantially caused a reproduction to occur liable for that reproduction. The person sharing the work certainly made it available to you, so they would still be guilty infringing the copyright holder's exclusive right to redistribute, but you're the one that triggered the software into making the reproduction, so it would be you infringing the exclusive right to reproduce.
I still have reservations about this, especially when you try to draw parallels to non-Internet infringements like selling bootlegs on the street. If a guy on the street had a CD burner on a stand, and burned CDs in real-time of a particular (vendor-chosen) copyrighted work for those requesting one, who is infringing copyright? The guy running the stand, right? Now what if you got rid of the guy and put a robot in his place? Who's infringing copyright now? Still the guy running the stand? Even though the copy isn't being made until you explicitly request one?
The guy operating the software on the sharing end knows full well that he does not have permission to share/reproduce/redistribute these works, and only he, not the downloader, is in a position to know that.
But I do agree that this isn't as simple an issue as I might have started out thinking.
Plus, in the US, 17.1008 [cornell.edu] would seem to grant end users the uncontestable right to make non-commercial copies of music they have in their possession.
I've researched this some more and while this is true of devices constructed primarily for generating these audio recordings, it wouldn't apply to a computer, since that's not its primary function. So this isn't an "out".
We have lots of trees in my area as well. The university here got around the problem by placing the antennas on relatively unobtrusive masts rising from the roof of their various properties. Get the antenna high enough to clear the trees and you're generally OK.
It depends on how tall your trees are, though, obviously.
Thanks for posting this. These are great points, and though they apply only in the US, it's likely other areas have similar interpretations.
I still have an issue with classifying a downloader as an infringer ("Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."). I believe the 9th Circuit made this statement without a true finding of fact, only to point out that there was some form of infringement occurring (which is all that was needed to continue with the finding against Napster). The downloader may have requested a copy and was provided a copy through the service, the actual duplication and retransmission occurred entirely on the sending side. The downloader has no knowledge that the work is being duplicated illegally, and while that doesn't matter in classifying the act as infringing, it makes it nearly impossible to find him guilty of it without additional work (e.g. a C&D letter).
So while existing precedent might support a statement saying a downloader infringes merely by receiving a copy (or retaining that copy in memory or storing it on disk), I still feel there's enough room for challenge here.
On your last point, the net to ram to disk not being copying, you again have to overcome the findings in MAI and Southeastern cases, both of which arrived at precisely the same analysis in the context of loading a program from disk into ram for execution.
This too is troubling. The MAI case did seem to indicate that simply moving a copyrighted work from disk to RAM was copying and could be regulated by copyright law (see pages 8 and 9). In these cases, though, both copies were required to be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." If the act of receiving a copy online can be demonstrated not to be an act of copying, this definition still wouldn't qualify a work being written from RAM to disk as copying either, since the version in RAM is transient and not sufficiently permanent or stable that it can be used. It's simply buffered there until it can be written to disk and cannot be otherwise used or accessed. It is completely transient as it passes through the network, into RAM and onto disk. The first and only copy the recipient is given is the copy that arrives on his/her disk.
I could still see an argument, however, that since the "fixation" occurs entirely on the downloader's PC, that the downloader is still very much responsible for creating the copy (even though the downloader does not have possession of the original, unless the "data stream" can be considered the original), and thus is the one infringing the copyright.
This might require a court challenge to settle, I'm afraid. Though I certainly concede now that things may not have been as clear as I originally thought or indicated in my first posts.
the RIAA goes after distributors because they hope to avoid taking every single person to court and if the larger distributors are forced into inactivity then file sharing will slow to a crawl.
If we observe this interpretation of the law, there's no reason for the RIAA not to go after every downloader/copyer in existence. US law allows the RIAA to reclaim legal fees, so they lose absolutely nothing.
They couldn't claim actual damages, because they'd need to demonstrate that the person making the copy would have otherwise purchased the album (assuming they didn't already own it), and even if they could demonstrate that, the actual damages here would be a tiny fraction of the statutory damages they could be awarded.
So basically, the law allows them to recover a minimum of $750 per action (plus legal fees). If they can demonstrate that the act of copying was willfull (as most simple acts of copying are), that can go as high as $150k.
So why the hell not do this for every Joe Downloader? It should be trivial to prove the copying was done if there's a copy on his hard drive, right? If a typical college kid has a couple of dozen songs he's downloaded, you could pretty easily bankrupt him and walk away with a hefty profit.
Basically to me it seems unreasonable that the law is meant to be interpreted like this. Put yourself in this scenario: you go to a web site/P2P network and are given a choice of two songs by two different artists. One of the artists/labels released their song for free on the Internet. The other had their song ripped from a CD illegally and posted. You've never heard of either artist. What do you do? Is it your obligation at this point to call up both artists and see if this song is legally redistributable to you before you can even download it? Or is that something that needs to be up to the person actually doing the redistribution (by posting it or sharing it)?
Apply some common sense here and you find that the downloader can't be held responsible for the infringement actually caused by the redistributor.
But the moment you re-share that same song (as many P2P clients do), you are infringing in the bad way and deserve to have action taken. It is your obligation at this point to determine if a copyrighted work is allowed to be redistributed before you redistribute it.
Plus, in the US, 17.1008 would seem to grant end users the uncontestable right to make non-commercial copies of music they have in their possession. This could be applied to the act of copying that occurs when receiving a file over the Internet. This is still different from redistribution, mind you, that would make the person sharing the music still quite liable for infringement.
In the US (and many other countries), the mere act of copying is indeed infringement. In the US, though, there's also a provision that specifically prevents action against a person making a personal digital/analog recording for non-commercial purposes. The act of making a copy like this might allow them to escape prosecution, but IANAL as well.
I've been hunting for a while for any case precedent that describes this situation more fully but I haven't found a single case where someone was accused of infringement (even contributory) merely by downloading or otherwise accessing a copyrighted work. So I'm afraid I have no legal precedent to back up what I'm saying here, though the lack of this information suggests that downloaders have simply never been taken to court, either because the law doesn't apply to them, or because the damages are virtually non-existent (making a court case unproductive and unprofitable).
But examining US law for the moment, like UK law, technically even the act of copying without distribution infringes on the copyright holder's rights. Specifically, title 17, chapter 1, section 106 states:
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1)
to reproduce the copyrighted work in copies or phonorecords;
(2)
to prepare derivative works based upon the copyrighted work;
(3)
to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4)
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5)
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6)
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission
The only thing you could possibly nail a downloader for would be (1), if you can show that the downloader was the one that copied the work. Maybe it's enough that the downloader solicited and directly "caused" the copy to be created, I don't know (that'd be for your jurisdiction's judicial system to decide), but it seems obvious to me that the real infringer here is the one sharing the files, not the one downloading them.
Consider a case of an unknown artist releasing an unknown song. How is a potential downloader supposed to know that the work he's downloading is being released to him legally (as in the artist is giving it away freely) or if it's been grabbed off of a CD and redistributed illegaly? Are you to assume that anything and everything you see online is copyrighted and that you are not permitted to download (thus "copy" to some) it? A downloader/viewer/browser can't possibly know this. But he is also legally obligated to refrain from redistributing that copy himself if he can't verify that he's allowed to do so. Again, it's the copying + redistribution that's actionable, not simply the reception.
Also check out this gem in the US copyright law that seems to give end-users an "out" here as well. If I understand it correctly, a copyright holder can't take action against an infringer if that infringer is simply making his own (digital, even) recording.
Correct. Some jurisdictions are a bit fuzzy in that respect. In the UK, though, I don't believe you can be prosecuted until the act harms the copyright holder (e.g. through distribution). Copying and holding on to that copy wouldn't be grounds for prosecution, even though the law is worded that way.
Any country adopting WIPO treaties. Actually I know of no countries where they prosecute buyers/downloaders, but I couldn't be sure, so I just said most.
I also know of no test cases where this has been demonstrated, but this could easily be because there are no grounds to try a downloader/buyer for copyright infringement to begin with.
Stick a highly directional antenna on an 802.11 setup and you can get some fairly good mostly point-to-point wireless links. The local university does that here between campus and its various off-campus houses purchased in the neighborhoods nearby. The trick is getting the antenna high enough that it has a direct line of sight.
I can certainly see an argument for contributing, but I have no confidence that it's an open-and-shut case for downloaders even with the arguments I can come up with.
The act of downloading itself is not creating a copy, since you do not possess the original to make a copy from! You are simply requesting a copy (electronically) and being provided a (single and only) copy via software. It's the person sharing the work that's generating the copy and transmitting it to you.
Can you cite any case precedent that indicates the person requesting the copy is even contributing to infringement?
Look at this from the low-tech side, with bootleg movies sold on the streets. Do you ever hear of buyers getting nailed for infringement (even contributory)? Is there even a case there? Technologically, we're not talking about anything different here: we have a consumer requesting a copy.
The fact that internally, the software has to write that data to a hard disk doesn't mean that that data was "copied" from memory to disk, thus making you an infringer. I'd have a hard time believing that is cause for prosection.
Keep in mind that copyright law has *nothing* to do with other forms of illegal trafficking. Solicitation is illegal in your example because it's illegal to possess. It's not illegal to possess a copyrighted work that you did not obtain with the consent of the copyright holder, so it makes little sense to solicit. It's the guy giving it to you that's breaking the law here. Again, copyright only covers the act of copying and distribution, not possession.
It's really not you making the copy though. You're just downloading bits of data. You have no idea where those bits originated or how they were assembled. Further, you have no information suggesting the service you are using is not even a legitimate music distribution service. You shouldn't have to know that.
The person sharing the music, however, is the one making the copy. His software is reading the bits from a file and sending those bits over the network. This is the act of copying (and redistribution), which is the illegal part. Further, the guy sharing the music is the only one that knows factually that what he is doing is wrong.
In most countries, it is not illegal to download copyrighted music. It's illegal to redistribute copyrighted music against the wishes of the copyright holder.
The RIAA can't come after you just for downloading music. You have to be actively re-sharing that music out again to break a law.
On the flip side, though, you are not procuring that music through legal/legitimate means, so you may not be granted certain protections and warranties that you might otherwise be granted, so your law suit might be tricky.
It doesn't take a genius to administer SSH or VNC or any other stable Open Source software.
No, it doesn't, and in many enterprises, these tools are deployed without a second thought, supported by the system administrators because they can, and because support requirements really are trivial.
But these types of tools are very ubiquitous and are easily supported. You can't throw things like MySQL or some other giant web application thing grabbed off of SourceForge into that sentence.
And I'm sorry, but a "call-list" is very much a small-business solution again. How big does the list need to be? Do you have some sort of contractual agreement with those on the list for them to be available 24x7? If so, why do you need a list longer than one person? If not, what happens when that list is too short?
I disagree. It is about having your ass covered, but not for the purposes of a lawsuit, but to ensure that you have all of the means available to you to ensure that any downtime is minimized at the right price.
Generic "Unix" administration is a no-brainer, but even corporate administration groups aren't dumb enough to forego a maintenance contract. Lots of kiddies out there can "support" a Unix OS pretty readily, but when 'login' starts coredumping or the OS starts throwing random panics, sometimes you need professional assistance, and you need it right now. It can be very expensive to have people capable of solving these problems on staff. (And if they're that capable, you're probably wasting them or wasting money on their high salaries for the times when they aren't solving these tricky ones.)
We deal with a large number of vendors with a variety of maintenance agreements, and it's never been an issue of liability. It's just that it's far more expensive for us to have on-hand a staff as capable as the engineers at the vendor's disposal than it is for us to get a maintenance contract with them.
In the end, it's the management that is liable for downtime and nobody else. If you/they think that 24x7 availability across a diverse set of problems is possible with in-house staff cheaper than a support contract, then by all means they need to pursue that. But for many types of projects, that just isn't realistic when all of the costs are added up in the end.
But on the other hand, there are many projects and situations that this support arrangement might work perfectly well for (especially those that don't really have a high availability requirement)...
But she has a perfectly valid point. When MySQL breaks, are you the only/best option for fixing it? Do you really consider yourself that much of an expert that you could handle any conceivable problem that you might face? What if a hardware problem causes data corruption? Would you know how to recover from that? What if a library incompatibility comes up in the future and breaks MySQL. Would you be able to troubleshoot that and get the database back up? How long would it take you to do that? What if you run across a problem you have no idea how to resolve? Are you confident enough in your ability to find a solution via newsgroups or mailing lists?
Now what happens when you're on vacation? What happens when you've left the company? How does additional staffing (and training, since it may be very difficult to find a MySQL guru as smart as you might be) factor into your costs?
The point is, from an enterprise management perspective, things aren't as simple as some of us think. We think, yah, I can support this pretty easily. I haven't had a problem yet with it that I haven't been able to resolve (given enough time). Now ask yourself if that's sufficient for the project, or if you're going to need something or someone else to fall back on.
The "guru" support model works very well for smaller businesses, but frequently has major problems scaling to support an enterprise.
Now, I'm not saying that you (or someone else) might not have problems with this anyway (given that MySQL is actually fairly popular), but others reading this might not have the same luck with any OSS project. Just because the source is available doesn't mean it's cheaper to use than a commercially-supported product.
cost for global support on an ongoing basis over say the course of the next five years...
Then find developers who are very comfortable with the "products" that you are recommending. Factor in the cost of hiring them and their salary on an on going basis.
A frequent (and potentially disastrous for you) mistake people make here is to underestimate these costs. If you can come up with a list of a few names in your organization that can probably support an OSS product, such that you'll always have sufficient staffing to handle any problem 24x7, also be sure you're including the costs of replacements if any are needed. Frequently OSS advocates are the "gurus" of their organization, capable of adapting to a wide range of software and even doing a fair job of supporting it single-handedly. Gurus are exceptionally expensive, though, and most real support organizations are staffed with "real world" techs that got where they are through training, not geeking.
Just something to think about. The last thing you want to do is weasel OSS into the door and have it bite you in the ass when the cost vs. availability ratio goes to shit because you used yourself as a template when coming up with these bad estimates. You'll never be able to get a non-vendor-supported product in there again.
convincing management that Open Source software is safe to use
Most Open Source advocates really need to think about something before they go charging in assuming OSS without vendor support is really better for all situations: Management wants 24x7 support not because they think the software is unstable, but because they cannot afford downtime when that software does fail.
"So what?" you say, "I've been using this stuff for years and I can solve pretty much any problem they might run across. I am 24x7 support!" What happens when you're gone? On vacation? What happens when you get burned out and sick of being the only guy capable of supporting an application that's taken off in the enterprise and now has a hundred installations all over the world? What happens when you have trouble finding someone with the skill sets needed to replace you?
This "guru" support model simply does not scale. This is why management wants 24x7 support: so that no matter what happens to their gurus, they always have a toll-free 800 number to call to get someone that knows what they're doing on the problem. If that person can't solve it, a good maintenance contract might even involve getting the vendor to fly an engineer out there to fix the problem. This is very much about making management feel good about getting the support they need to solve their problems.
The alternative is to spend an exceptional amount of money training a staff equivalent to the staff of the vendor to be just as smart and available as a vendor offering 24x7 support. It's not just about hiring two or three strategically-placed gurus.
Now, with that out of the way, OSS can still work in the enterprise, provided you approach the situation intelligently. Can your organization staff up a support group internally to support this application without requiring a maintenance contract with a vendor? (And can you keep them busy enough to make it cheaper in the long run?) Certain skillsets are pretty common nowadays, such as administration of Apache. It may be perfectly realistic to be able to staff up a small group to support common OSS applications in an enterprise. If someone leaves the company, it's realistic that they can be replaced or someone else trained to fill the vacancy, but you can never count on being able to hire a small army of "gurus" capable of adapting to any OSS application at the drop of a hat. This is very unrealistic (not to mention extremely expensive).
But not all OpenSource projects fit into this category. Frequently they'll be smaller projects that might be used plenty on the Internet, but either because there's a guru out there actually setting it up and administering it (that can adapt to just about anything), or because the author made it exceptionally easy for a novice to get it running. Neither of these options is acceptable in an enterprise setting! Your guru won't be there forever, and your army of novices won't have a clue how to fix a novice-friendly application when it breaks.
The bottom line is that you need to consider your company's true support expenses here: if an application needs 24x7 support, you either need to have a staff of people on-hand to guarantee support for this application (across your enterprise), at a significant expense, or there needs to be a vendor out there willing to assume 24x7 support for a fraction of that cost.
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Are you telling me that basically all p2p network usefulness arises from transfers of copyrighted material.
No, but if it's impossible to tell if you're breaking the law or not, caution requires that you refrain from using it at all.
Since you cannot guarantee that the work you are downloading is not copyrighted or licensed for redistribution, you cannot guarantee that the act of downloading it is legal.
And how does this interpretation expand to the web? If someone gives you a URL, and you visit that URL and retrieve a copyrighted work that was not legally made available at that URL, you're now guilty of copyright infringement? Everything about the Internet is now suspect.
With interpretations like this, it sounds like DRM is the only thing that can save it.
1. District Court made express finding of underlying infringement by dowloading into browser and then disk. This was affirmed by the 9th Circuit.
3. This isn't close to unsettled -- there are several p2p judgments already on the books, each relying on a finding of direct infringement.
There might be some miscommunication here, or perhaps I'm just having trouble locating this in either the District Court's or the 9th Circuit's decisions.
I can find plenty of mention that copyright infringement has occurred since an upload/download has taken place, which results in a near-perfect reproduction of the original. I can not, however, find any discussion about which side of the transaction is ultimately responsible for the duplication (and thus the infringement), only that infringement has occurred. (And the fact that infringement has occurred is ultimately all that's necessary to proceed with the action against Napster; which party is irrelevant). The only thing I can find is that statement by the 9th Circuit that summarized, in passing, that downloaders were infringing the right of reproduction. This doesn't seem to be supported by the District Court's findings or decision.
I don't mean to be going back and forth about this. I would be very interested in seeing the actual argument and conclusion here that found the downloader was guilty of the reproduction (especially any cases where an action was brought against them merely for that download, which is kind of what this thread is about).
I guess I can concede at this point that there is a high likelyhood that in the US, a downloader can indeed be considered an infringer. This really seems counter-intuitive to me (and I'm very much used to laws and interpretations seeming intuitive to me), but the seed is certainly there. This is actually somewhat scary, since any viewing whatsoever by the end user is considered an infringement. If I view a copyrighted work online that someone else posted on a web page (text, whatever), I am infringing copyright. This just seems exceptionally wrong.
MAI found that the RAM image was non-transient.
But only because it was viewable on the screen and usable in that form. In the case of an online download, the data in RAM is not viewable/usable in that form. It's strictly there to facilitate being written to disk. These are not two copies, they are one transient impression in the process of being written to disk. The only thing the user can see, interact with or otherwise use (copy!) is the version on disk.
Whether or not the image in memory is usable in that form is at the heart of whether or not it's "transient".
Is it your obligation at this point to call up both distillers
I would trust that the bartender knows what he's doing. If I consumed something that put me in the hospital (or killed me), it probably wasn't legal for the bartender to serve it to me, so you bet I would go after him. You seem to be overlooking the server's role in this.
I'm not going to whip out my alcohol/toxin detection kit to ensure that what I'm being served is safe and legal. Or are you suggesting that by being "ignorant" of what I'm requesting I deserve what I get?
Ignorance is no excuse and generally even less of a defence especially if you are willfully ignorant.
I won't dispute this, but this interpretation does eliminate all usefulness from P2P networks. You cannot verify that anything you receive won't draw a civil action against you. The interpretation goes past several "common sense" lines that I think even a judge would respect.
Also check out this gem [cornell.edu] in the US copyright law that seems to give end-users an "out" here as well. If I understand it correctly, a copyright holder can't take action against an infringer if that infringer is simply making his own (digital, even) recording.
After doing some more research on this, a computer wouldn't qualify as a recording device here, since that's not a computer's primary purpose. So this isn't an "out".
This is a good point, and it basically can be summed up by holding the person that substantially caused a reproduction to occur liable for that reproduction. The person sharing the work certainly made it available to you, so they would still be guilty infringing the copyright holder's exclusive right to redistribute, but you're the one that triggered the software into making the reproduction, so it would be you infringing the exclusive right to reproduce.
I still have reservations about this, especially when you try to draw parallels to non-Internet infringements like selling bootlegs on the street. If a guy on the street had a CD burner on a stand, and burned CDs in real-time of a particular (vendor-chosen) copyrighted work for those requesting one, who is infringing copyright? The guy running the stand, right? Now what if you got rid of the guy and put a robot in his place? Who's infringing copyright now? Still the guy running the stand? Even though the copy isn't being made until you explicitly request one?
The guy operating the software on the sharing end knows full well that he does not have permission to share/reproduce/redistribute these works, and only he, not the downloader, is in a position to know that.
But I do agree that this isn't as simple an issue as I might have started out thinking.
Plus, in the US, 17.1008 [cornell.edu] would seem to grant end users the uncontestable right to make non-commercial copies of music they have in their possession.
I've researched this some more and while this is true of devices constructed primarily for generating these audio recordings, it wouldn't apply to a computer, since that's not its primary function. So this isn't an "out".
We have lots of trees in my area as well. The university here got around the problem by placing the antennas on relatively unobtrusive masts rising from the roof of their various properties. Get the antenna high enough to clear the trees and you're generally OK.
It depends on how tall your trees are, though, obviously.
Thanks for posting this. These are great points, and though they apply only in the US, it's likely other areas have similar interpretations.
I still have an issue with classifying a downloader as an infringer ("Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."). I believe the 9th Circuit made this statement without a true finding of fact, only to point out that there was some form of infringement occurring (which is all that was needed to continue with the finding against Napster). The downloader may have requested a copy and was provided a copy through the service, the actual duplication and retransmission occurred entirely on the sending side. The downloader has no knowledge that the work is being duplicated illegally, and while that doesn't matter in classifying the act as infringing, it makes it nearly impossible to find him guilty of it without additional work (e.g. a C&D letter).
So while existing precedent might support a statement saying a downloader infringes merely by receiving a copy (or retaining that copy in memory or storing it on disk), I still feel there's enough room for challenge here.
On your last point, the net to ram to disk not being copying, you again have to overcome the findings in MAI and Southeastern cases, both of which arrived at precisely the same analysis in the context of loading a program from disk into ram for execution.
This too is troubling. The MAI case did seem to indicate that simply moving a copyrighted work from disk to RAM was copying and could be regulated by copyright law (see pages 8 and 9). In these cases, though, both copies were required to be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." If the act of receiving a copy online can be demonstrated not to be an act of copying, this definition still wouldn't qualify a work being written from RAM to disk as copying either, since the version in RAM is transient and not sufficiently permanent or stable that it can be used. It's simply buffered there until it can be written to disk and cannot be otherwise used or accessed. It is completely transient as it passes through the network, into RAM and onto disk. The first and only copy the recipient is given is the copy that arrives on his/her disk.
I could still see an argument, however, that since the "fixation" occurs entirely on the downloader's PC, that the downloader is still very much responsible for creating the copy (even though the downloader does not have possession of the original, unless the "data stream" can be considered the original), and thus is the one infringing the copyright.
This might require a court challenge to settle, I'm afraid. Though I certainly concede now that things may not have been as clear as I originally thought or indicated in my first posts.
the RIAA goes after distributors because they hope to avoid taking every single person to court and if the larger distributors are forced into inactivity then file sharing will slow to a crawl.
If we observe this interpretation of the law, there's no reason for the RIAA not to go after every downloader/copyer in existence. US law allows the RIAA to reclaim legal fees, so they lose absolutely nothing.
They couldn't claim actual damages, because they'd need to demonstrate that the person making the copy would have otherwise purchased the album (assuming they didn't already own it), and even if they could demonstrate that, the actual damages here would be a tiny fraction of the statutory damages they could be awarded.
So basically, the law allows them to recover a minimum of $750 per action (plus legal fees). If they can demonstrate that the act of copying was willfull (as most simple acts of copying are), that can go as high as $150k.
So why the hell not do this for every Joe Downloader? It should be trivial to prove the copying was done if there's a copy on his hard drive, right? If a typical college kid has a couple of dozen songs he's downloaded, you could pretty easily bankrupt him and walk away with a hefty profit.
Basically to me it seems unreasonable that the law is meant to be interpreted like this. Put yourself in this scenario: you go to a web site/P2P network and are given a choice of two songs by two different artists. One of the artists/labels released their song for free on the Internet. The other had their song ripped from a CD illegally and posted. You've never heard of either artist. What do you do? Is it your obligation at this point to call up both artists and see if this song is legally redistributable to you before you can even download it? Or is that something that needs to be up to the person actually doing the redistribution (by posting it or sharing it)?
Apply some common sense here and you find that the downloader can't be held responsible for the infringement actually caused by the redistributor.
But the moment you re-share that same song (as many P2P clients do), you are infringing in the bad way and deserve to have action taken. It is your obligation at this point to determine if a copyrighted work is allowed to be redistributed before you redistribute it.
Plus, in the US, 17.1008 would seem to grant end users the uncontestable right to make non-commercial copies of music they have in their possession. This could be applied to the act of copying that occurs when receiving a file over the Internet. This is still different from redistribution, mind you, that would make the person sharing the music still quite liable for infringement.
In the US (and many other countries), the mere act of copying is indeed infringement. In the US, though, there's also a provision that specifically prevents action against a person making a personal digital/analog recording for non-commercial purposes. The act of making a copy like this might allow them to escape prosecution, but IANAL as well.
Correct. Some jurisdictions are a bit fuzzy in that respect. In the UK, though, I don't believe you can be prosecuted until the act harms the copyright holder (e.g. through distribution). Copying and holding on to that copy wouldn't be grounds for prosecution, even though the law is worded that way.
But I'm not a lawyer, especially not in the UK.
Any country adopting WIPO treaties. Actually I know of no countries where they prosecute buyers/downloaders, but I couldn't be sure, so I just said most.
I also know of no test cases where this has been demonstrated, but this could easily be because there are no grounds to try a downloader/buyer for copyright infringement to begin with.
Stick a highly directional antenna on an 802.11 setup and you can get some fairly good mostly point-to-point wireless links. The local university does that here between campus and its various off-campus houses purchased in the neighborhoods nearby. The trick is getting the antenna high enough that it has a direct line of sight.
I can certainly see an argument for contributing, but I have no confidence that it's an open-and-shut case for downloaders even with the arguments I can come up with.
The act of downloading itself is not creating a copy, since you do not possess the original to make a copy from! You are simply requesting a copy (electronically) and being provided a (single and only) copy via software. It's the person sharing the work that's generating the copy and transmitting it to you.
Can you cite any case precedent that indicates the person requesting the copy is even contributing to infringement?
Look at this from the low-tech side, with bootleg movies sold on the streets. Do you ever hear of buyers getting nailed for infringement (even contributory)? Is there even a case there? Technologically, we're not talking about anything different here: we have a consumer requesting a copy.
The fact that internally, the software has to write that data to a hard disk doesn't mean that that data was "copied" from memory to disk, thus making you an infringer. I'd have a hard time believing that is cause for prosection.
Keep in mind that copyright law has *nothing* to do with other forms of illegal trafficking. Solicitation is illegal in your example because it's illegal to possess. It's not illegal to possess a copyrighted work that you did not obtain with the consent of the copyright holder, so it makes little sense to solicit. It's the guy giving it to you that's breaking the law here. Again, copyright only covers the act of copying and distribution, not possession.
It's really not you making the copy though. You're just downloading bits of data. You have no idea where those bits originated or how they were assembled. Further, you have no information suggesting the service you are using is not even a legitimate music distribution service. You shouldn't have to know that.
The person sharing the music, however, is the one making the copy. His software is reading the bits from a file and sending those bits over the network. This is the act of copying (and redistribution), which is the illegal part. Further, the guy sharing the music is the only one that knows factually that what he is doing is wrong.
In most countries, it is not illegal to download copyrighted music. It's illegal to redistribute copyrighted music against the wishes of the copyright holder.
The RIAA can't come after you just for downloading music. You have to be actively re-sharing that music out again to break a law.
On the flip side, though, you are not procuring that music through legal/legitimate means, so you may not be granted certain protections and warranties that you might otherwise be granted, so your law suit might be tricky.
Your jurisdiction may differ, though.
Go after spammers with the same verocity as the RIAA would with file swapping.
Yah, because that's working.
Laws aren't the answer either because spammers are increasingly relocating offshore. How are you going to get your laws to apply to them?
Laws might help, especially for some domestic spammers or companies that stupidly contract a spammer's services, but it's never going to do the job.
A solution from both worlds seems like it has the best chance of succeeding.
It doesn't take a genius to administer SSH or VNC or any other stable Open Source software.
No, it doesn't, and in many enterprises, these tools are deployed without a second thought, supported by the system administrators because they can, and because support requirements really are trivial.
But these types of tools are very ubiquitous and are easily supported. You can't throw things like MySQL or some other giant web application thing grabbed off of SourceForge into that sentence.
And I'm sorry, but a "call-list" is very much a small-business solution again. How big does the list need to be? Do you have some sort of contractual agreement with those on the list for them to be available 24x7? If so, why do you need a list longer than one person? If not, what happens when that list is too short?
I disagree. It is about having your ass covered, but not for the purposes of a lawsuit, but to ensure that you have all of the means available to you to ensure that any downtime is minimized at the right price.
Generic "Unix" administration is a no-brainer, but even corporate administration groups aren't dumb enough to forego a maintenance contract. Lots of kiddies out there can "support" a Unix OS pretty readily, but when 'login' starts coredumping or the OS starts throwing random panics, sometimes you need professional assistance, and you need it right now. It can be very expensive to have people capable of solving these problems on staff. (And if they're that capable, you're probably wasting them or wasting money on their high salaries for the times when they aren't solving these tricky ones.)
We deal with a large number of vendors with a variety of maintenance agreements, and it's never been an issue of liability. It's just that it's far more expensive for us to have on-hand a staff as capable as the engineers at the vendor's disposal than it is for us to get a maintenance contract with them.
In the end, it's the management that is liable for downtime and nobody else. If you/they think that 24x7 availability across a diverse set of problems is possible with in-house staff cheaper than a support contract, then by all means they need to pursue that. But for many types of projects, that just isn't realistic when all of the costs are added up in the end.
But on the other hand, there are many projects and situations that this support arrangement might work perfectly well for (especially those that don't really have a high availability requirement)...
But she has a perfectly valid point. When MySQL breaks, are you the only/best option for fixing it? Do you really consider yourself that much of an expert that you could handle any conceivable problem that you might face? What if a hardware problem causes data corruption? Would you know how to recover from that? What if a library incompatibility comes up in the future and breaks MySQL. Would you be able to troubleshoot that and get the database back up? How long would it take you to do that? What if you run across a problem you have no idea how to resolve? Are you confident enough in your ability to find a solution via newsgroups or mailing lists?
Now what happens when you're on vacation? What happens when you've left the company? How does additional staffing (and training, since it may be very difficult to find a MySQL guru as smart as you might be) factor into your costs?
The point is, from an enterprise management perspective, things aren't as simple as some of us think. We think, yah, I can support this pretty easily. I haven't had a problem yet with it that I haven't been able to resolve (given enough time). Now ask yourself if that's sufficient for the project, or if you're going to need something or someone else to fall back on.
The "guru" support model works very well for smaller businesses, but frequently has major problems scaling to support an enterprise.
Now, I'm not saying that you (or someone else) might not have problems with this anyway (given that MySQL is actually fairly popular), but others reading this might not have the same luck with any OSS project. Just because the source is available doesn't mean it's cheaper to use than a commercially-supported product.
cost for global support on an ongoing basis over say the course of the next five years...
Then find developers who are very comfortable with the "products" that you are recommending. Factor in the cost of hiring them and their salary on an on going basis.
A frequent (and potentially disastrous for you) mistake people make here is to underestimate these costs. If you can come up with a list of a few names in your organization that can probably support an OSS product, such that you'll always have sufficient staffing to handle any problem 24x7, also be sure you're including the costs of replacements if any are needed. Frequently OSS advocates are the "gurus" of their organization, capable of adapting to a wide range of software and even doing a fair job of supporting it single-handedly. Gurus are exceptionally expensive, though, and most real support organizations are staffed with "real world" techs that got where they are through training, not geeking.
Just something to think about. The last thing you want to do is weasel OSS into the door and have it bite you in the ass when the cost vs. availability ratio goes to shit because you used yourself as a template when coming up with these bad estimates. You'll never be able to get a non-vendor-supported product in there again.
convincing management that Open Source software is safe to use
Most Open Source advocates really need to think about something before they go charging in assuming OSS without vendor support is really better for all situations: Management wants 24x7 support not because they think the software is unstable, but because they cannot afford downtime when that software does fail.
"So what?" you say, "I've been using this stuff for years and I can solve pretty much any problem they might run across. I am 24x7 support!" What happens when you're gone? On vacation? What happens when you get burned out and sick of being the only guy capable of supporting an application that's taken off in the enterprise and now has a hundred installations all over the world? What happens when you have trouble finding someone with the skill sets needed to replace you?
This "guru" support model simply does not scale. This is why management wants 24x7 support: so that no matter what happens to their gurus, they always have a toll-free 800 number to call to get someone that knows what they're doing on the problem. If that person can't solve it, a good maintenance contract might even involve getting the vendor to fly an engineer out there to fix the problem. This is very much about making management feel good about getting the support they need to solve their problems.
The alternative is to spend an exceptional amount of money training a staff equivalent to the staff of the vendor to be just as smart and available as a vendor offering 24x7 support. It's not just about hiring two or three strategically-placed gurus.
Now, with that out of the way, OSS can still work in the enterprise, provided you approach the situation intelligently. Can your organization staff up a support group internally to support this application without requiring a maintenance contract with a vendor? (And can you keep them busy enough to make it cheaper in the long run?) Certain skillsets are pretty common nowadays, such as administration of Apache. It may be perfectly realistic to be able to staff up a small group to support common OSS applications in an enterprise. If someone leaves the company, it's realistic that they can be replaced or someone else trained to fill the vacancy, but you can never count on being able to hire a small army of "gurus" capable of adapting to any OSS application at the drop of a hat. This is very unrealistic (not to mention extremely expensive).
But not all OpenSource projects fit into this category. Frequently they'll be smaller projects that might be used plenty on the Internet, but either because there's a guru out there actually setting it up and administering it (that can adapt to just about anything), or because the author made it exceptionally easy for a novice to get it running. Neither of these options is acceptable in an enterprise setting! Your guru won't be there forever, and your army of novices won't have a clue how to fix a novice-friendly application when it breaks.
The bottom line is that you need to consider your company's true support expenses here: if an application needs 24x7 support, you either need to have a staff of people on-hand to guarantee support for this application (across your enterprise), at a significant expense, or there needs to be a vendor out there willing to assume 24x7 support for a fraction of that cost.