In the fall of 2005, I was in a computer lab in Italy. There were probably 10 or 12 desktop stations. We'd often have trouble with our sessions temporarily crossing. So I'd be on Facebook and then all of a sudden somebody else's profile would show up when I'd click a link to my profile. Similarly, this would happen to other people. We couldn't make any changes - a single click to a new page would take us back to our account. Facebook was a very different operation back then, but I always assumed it was the network admins who were at fault.
1) If the benefit were negligible, why would they do it?
Neglible means small. The benefit derived from not putting a quarter into a meter and chancing a ticket is small too, but people do it all the time.
People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not.
a) People are not all that rational nor are they all that well informed about the actual risks or the absurd penalties.
b) Do YOU really claim to know the odds of getting caught downloading a song and fined an absurd amount? If its in the same ballpark as a lightning strike or a lottery win, how much weight does it have on your decision?
Negligible means 'so small it can be ignored.' You don't need to know the exact risk. Whether people do an explicit cost-benefit analysis is not the issue. It's that it's implied in behavior. For me, as an example, I don't calculate the exact risk, but abide by heuristics. I don't pirate any music anymore because too many people get caught and the fines are too great. I do, however, stream TV shows when episodes I want to watch are not available on Hulu or whatever network's website. The likelihood of getting caught for this is much less than getting caught with illegal files, or accidentally sharing music I didn't intend to share on a p2p program. From my experience, people are very aware of the RIAA and insane fines.
Actually, sarcasm aside, the Audio Home Recording Act (AHRA) of 1992 section 1008 actually explicitly protects "noncommercial copying by consumers provided copies are not for direct or indirect commercial advantage". A senate report explicitly offers examples such as making copies for a family member, or copies for use in a car or portable tape player. I don't think anyone has EVER been charged with making a mix tape, or copying a CD for a friend so there really isn't much application of the law to draw from, but still, there is clearly an argument to be made that doing something like this is, in fact, perfectly ok.
Actually, that's not what the AHRA says. 17 U.S.C. 1008 provides that "No action may be brought under this title alleging infringement of copyright based on . . . the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
Copying a CD and disributing it to a person would violate two exlusive rights under Section 106: the reproduction right and distribution right. If you violate either, you are an infringer. If Section 1008 is to save this potential infringer, it must protect against both of these violations. When you distribute to your friend, you are making a public distribution. Section 106(3) says nothing about private distribution, after all, so this would save the family member (I would guess only immediate family, though). But as far as the reproduction right . . .
While the reports do say this is meant to permit copies for a family member or for use in the car, there's no mention of friends. While we can both imagine a court agreeing with family member copies under the actual text (the text is the law, not the history - though the history will be more or less important depending on the judge), can you really imagine this for a friend? On the one hand, you have enjoyment of your purchase in your home (with your family). On the other, you have enjoyment by somebody else outside of your home. While both scenarios are not much different than downloading the same CD from a p2p client, the distinction has to do with the party you are interacting with. It's not as if sharing across a p2p program with your friend will grant you immunity under Section 1008.
One can't get too caught up in what's commercial and noncommercial. The legal significance is probably not all that intuitive if you ask me. And the reason nobody is prosecuted for mix tapes is because, in part, it's too difficult to find instances wher
In a digital world, the public domain of IP is perfectly competitive. There are no marginal costs, so each copy should be free. Because being free would disincentive people from creating, or creating and sharing, we need to incentivize IP and create a legal structure that stops perfect competition so that creativity will happen. Just looking at it from a cost perspective misses the point of U.S. copyright law in the first place.
Well, of course the law could change. Here it would be more likely a change from Congress, though. The analysis was about the current law and a guess as to what the Supreme Court would do based on precedent.
I still don't think your hypo saves you now, but why don't you develop it a bit further and we can look again? That is, tell me the story with a little more precision as to what's happening.
I actually don't think that does anything to alter my above analysis. The unauthorized distribution (via streaming) of the authorized copy (wherever the bits start from) is still a candidate for a Section 106(2) violation. The same issue of reproduction persists (has a copy been made for a 106(1) violation?), but that there's another layer does nothing to change the analysis. It does nothing especially because the Supreme Court is not fond at all of people trying circumvent their logic (see the Sony-Napster-Grokster line of cases to see this in action).
Oh, see, I'm just tired and not thinking well enough right now. If the bits are discarded, then no copy is made, and there's no violation of the reproduction right. The line I was referring to would be how much remains before discarding. At some point, if too much remains in the RAM, then there's a copy and a violation.
That's actually a really good question. To be fair to RIAA, downloading and streaming have different legal significances, which seem to me to be consistent with the technological differences (i.e. the reason you knew to ask that question). I'm not actually sure where the line is drawn, nor do I have a strong opinion on the policy behind drawing that line, for the reproduction right. However, it's not often an important question since they'll go after unauthorized distributors (Section 106(2)).
That said, if you rip from the stream you will violate the reproduction right if it is unauthorized. Because I don't think I made it clear enough earlier, unauthorized means that a) there is a valid copyright; b) the use is not exempt under Sections 107-122 (U.S.C. Title 17, ftr); c) the use was not exempt by the copyright holder's permission.
You just admitted that there are some special and limited cases. My original point was that you were overstating your position.
Also, the hypo used per-unit profit for illustrative purposes, but it was pointing to total profit (i.e. the only change to the equation was CGS and price).
The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
This is also true. If the DL/UL is unauthorized, it violates one of the exclusive rights under Section 106, subject to Sections 107-122.
Downloading, where unauthorized, is a violation of the reproduction right (Section 106(1)). This does not apply to public domain works, because they are not copyrighted. This does not apply to you recording a radio broadcast because of Section 114. Even without Section 114, however, since there are substantial non-infringing uses for your radio that can download broadcasts, the device would be fine (Sony Corp. of America v. Universal City Studios, 464 US 417 (1984))
Now, if you are wondering why the act of downloading a copyrighted work without authorization is illegal, it's because you make a copy when doing so. Even if it's only in your RAM or cache.
Sigh. You're not being creative enough. I never said that adjusting price upward cannot result in lower profits. I said that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect. Your original claim was that it follows necessarily ("their cost has got to come out of your profit"). My hypo gave an admittedly simplistic example of why that is not necessarily true.
You made my point for me, and somehow think I am wrong. Some sales are lost. The real question is, as I just said, "whether the net effect of piracy is a positive for the music industry." Whether it is "a hell of a lot less than the number of total downloads" is a huge statement that you've not supported in the least. It requires far more context to be meaningful, which is why there's really nothing you could have said to make it better barring an actual fact pattern. In any case, I am certainly not equating copies downloaded and sales lost. In fact, I made this point hours ago in this thread somewhere - not that I'd expect you to have read it.
Not sure what parallel universe you're living in, but yes that is exactly what it means. If costs go up, profits go down. Really, it's a mathematical fact: Profits = Revenues - Costs. Costs big, profits small. I don't think I can make this any simpler for you.
You're missing the point. I'm not describing the relationship between revenue and costs on the income statement. I'm describing the relationship between expected value and your input. That is, if you have personal costs (like personal instruments), you adjust upward what you charge if you don't want to damage your profit.
Hypo: Let's say you want to make $10 per good sold, and can make widgets for $3 with no other expenses. Obviously you would sell it for $13. Now let's say you want to use your own X to make the widget (higher quality perhaps). Well, now it costs you $4, but you still want to make $10 per good sold. Now you have to adjust the price up to $14. So in an accounting sense, the increase in cost of goods sold went up, along with the price, so it comes out of profit because the cost of goods sold increased. However, you don't have to adjust downward the amount of profit you expect ($10/widget).
Wanting to make money doesn't make you greedy.
Again, that's pretty much exactly what the word means. Well, wanting to make 'excessive' amounts of money, anyway.
You've got some powerful Orwellian newspeak going on in your head.
See, your "well..." is my exact point. You managed to deny my point, concede it, and insult me at the same time. Impressive.
I am no RIAA supporter, but just a brief look on their website doesn't show that sort of propaganda that you speak of. Can you provide some examples? I'm curious if which side of the aisle this propaganda is coming from. Their site refers to "music theft", "piracy", and "illegally upload[ed] or download[ed] music online." I also see stuff like, "[w]e . . . educate fans about . . . the right ways to acquire [music]." The first thing the site says about the law is that "When you make illegal copies of someone’s creative work, you are stealing and breaking the law."
In fact, they give examples of situations where you could be violating the law. Keyword could. Careful reading is important, especially when dealing with the law. The examples refer to "copyrighted songs" (i.e. not in the public domain. Could this be a valid transmission? Sure. It usually isn't, but all they claim was could) and unauthorized copies or distribution.
You can even see here that they refer to exceptions. My analogy is not invalid except against the strawman position that the RIAA just says "don't download music!" Point that out and I will eat my words so long as it isn't clear to the ordinarily prudent reader that they are referring to unauthorized uses.
To the artist? Probably not - but it should go to the artist.
There is something huge to be said about 1) having the institutional power to produce and release a product widely; and 2) the risk taken during production. The risk is not with the artist, but those bankrolling the artist.
You've narrowed the focus to support your point, but dismissed important elements that are incredibly relevant, undermining how far you chose to narrow.
Are the record labels and anybody else who directly benefits from increased sales volume really always getting what they've always gotten? Even a single person downloading an unauthorized copy, when they would have otherwise purchased a copy, decreases sales volume. The big question is whether the net effect of piracy is a positive for the music industry. I would put that burden on the pirates' back, however, and it seems courts agree with this position.
I have a tough time buying into the known vulnerability argument. At some point people should be responsible for their own actions, even if it's easy not to be.
Precise language should be concern #1. In that vein, I'm not sure what you mean by "even with the qualifier copyright added" here. I'm guessing you mean a qualifier added to music/files to make it "sharing copyrighted files is illegal" and "downloading copyrighted music is illegal."
On the one hand, the fair use defense does exist, making the statement not necessarily true. However, when we are dealing with exact copies, we might as well be talking in terms of infringement.
This is why I presented the question raised as I did. I said, "[t]he question raised by this brief is whether activity that is prima facie infringement is saved by a fair use defense."
A successful infringement action requires two prongs. First, plaintiff must assert and prove by a preponderance of the evidence a prima facie case for some rights (reproduction/distribution/perform/derivative/a few others that aren't directly relevant here). This prong requires a valid copyright, as well as a violation of plaintiff’s exclusive rights. Second, the alleged infringer must not be saved by a procedural shortfall like failing to register, statutory limitations like fair use, or other statutory exceptions.
They tried DRM and people flipped shit. The only solution to the problem you outlined is making certain kinds of software illegal. Well, the Supreme Court realllllllly hates this idea. They want to see technological innovation, and concerning yourself with methods and creation of those methods stifles that, undermining the whole point of copyright.
They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).
A few points:
1) If the benefit were negligible, why would they do it? People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not.
2) You may borrow a friend's CD, but you may not make a copy of it.
3) There is measurable harm. Let's say there were 1000 illegal copies made of Song X. Let's then say 40% of those copies made would have led to purchases of the song on iTunes or something similar. That's $400 of harm, and 40 cents of harm per illegal copy. The percentage doesn't really matter. It's just that you could find a percentage that matters. Finally, we're dealing with punitive damages here. Nevertheless I agree they were excessive. Copyright's job is to incentivize expression. I don't think the amount here optimally does so.
And that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect from your efforts. Wanting to make money doesn't make you greedy.
It doesn't sound like he/she believes a file format is illegal. Making a copy of an mp3 that you are unauthorized to copy (and if it's a song like one in this case then it is unauthorized) is piracy.
That you can still share mp3s in a non-pirating way is a total strawman here. The question raised by this brief is whether activity that is prima facie infringement is saved by a fair use defense. And it is a ridiculous argument. I honestly couldn't believe what I was reading.
Slashdot Mirror
Hostile takeover is much more likely after they execute this plan fully.
In the fall of 2005, I was in a computer lab in Italy. There were probably 10 or 12 desktop stations. We'd often have trouble with our sessions temporarily crossing. So I'd be on Facebook and then all of a sudden somebody else's profile would show up when I'd click a link to my profile. Similarly, this would happen to other people. We couldn't make any changes - a single click to a new page would take us back to our account. Facebook was a very different operation back then, but I always assumed it was the network admins who were at fault.
1) If the benefit were negligible, why would they do it?
Neglible means small. The benefit derived from not putting a quarter into a meter and chancing a ticket is small too, but people do it all the time.
People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not.
a) People are not all that rational nor are they all that well informed about the actual risks or the absurd penalties.
b) Do YOU really claim to know the odds of getting caught downloading a song and fined an absurd amount? If its in the same ballpark as a lightning strike or a lottery win, how much weight does it have on your decision?
Negligible means 'so small it can be ignored.' You don't need to know the exact risk. Whether people do an explicit cost-benefit analysis is not the issue. It's that it's implied in behavior. For me, as an example, I don't calculate the exact risk, but abide by heuristics. I don't pirate any music anymore because too many people get caught and the fines are too great. I do, however, stream TV shows when episodes I want to watch are not available on Hulu or whatever network's website. The likelihood of getting caught for this is much less than getting caught with illegal files, or accidentally sharing music I didn't intend to share on a p2p program. From my experience, people are very aware of the RIAA and insane fines.
Actually, sarcasm aside, the Audio Home Recording Act (AHRA) of 1992 section 1008 actually explicitly protects "noncommercial copying by consumers provided copies are not for direct or indirect commercial advantage". A senate report explicitly offers examples such as making copies for a family member, or copies for use in a car or portable tape player. I don't think anyone has EVER been charged with making a mix tape, or copying a CD for a friend so there really isn't much application of the law to draw from, but still, there is clearly an argument to be made that doing something like this is, in fact, perfectly ok.
Actually, that's not what the AHRA says. 17 U.S.C. 1008 provides that "No action may be brought under this title alleging infringement of copyright based on . . . the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
Copying a CD and disributing it to a person would violate two exlusive rights under Section 106: the reproduction right and distribution right. If you violate either, you are an infringer. If Section 1008 is to save this potential infringer, it must protect against both of these violations. When you distribute to your friend, you are making a public distribution. Section 106(3) says nothing about private distribution, after all, so this would save the family member (I would guess only immediate family, though). But as far as the reproduction right . . .
While the reports do say this is meant to permit copies for a family member or for use in the car, there's no mention of friends. While we can both imagine a court agreeing with family member copies under the actual text (the text is the law, not the history - though the history will be more or less important depending on the judge), can you really imagine this for a friend? On the one hand, you have enjoyment of your purchase in your home (with your family). On the other, you have enjoyment by somebody else outside of your home. While both scenarios are not much different than downloading the same CD from a p2p client, the distinction has to do with the party you are interacting with. It's not as if sharing across a p2p program with your friend will grant you immunity under Section 1008.
One can't get too caught up in what's commercial and noncommercial. The legal significance is probably not all that intuitive if you ask me. And the reason nobody is prosecuted for mix tapes is because, in part, it's too difficult to find instances wher
You should reread our exchange. I'm amazed at how far off track you've led the discussion, and embarrassed that I continued on so long.
Where's the original copy coming from? The source of each bit. It has to start somewhere, else we're not dealing with a work that's copyrighted.
In a digital world, the public domain of IP is perfectly competitive. There are no marginal costs, so each copy should be free. Because being free would disincentive people from creating, or creating and sharing, we need to incentivize IP and create a legal structure that stops perfect competition so that creativity will happen. Just looking at it from a cost perspective misses the point of U.S. copyright law in the first place.
Well, of course the law could change. Here it would be more likely a change from Congress, though. The analysis was about the current law and a guess as to what the Supreme Court would do based on precedent.
I still don't think your hypo saves you now, but why don't you develop it a bit further and we can look again? That is, tell me the story with a little more precision as to what's happening.
I actually don't think that does anything to alter my above analysis. The unauthorized distribution (via streaming) of the authorized copy (wherever the bits start from) is still a candidate for a Section 106(2) violation. The same issue of reproduction persists (has a copy been made for a 106(1) violation?), but that there's another layer does nothing to change the analysis. It does nothing especially because the Supreme Court is not fond at all of people trying circumvent their logic (see the Sony-Napster-Grokster line of cases to see this in action).
Oh, see, I'm just tired and not thinking well enough right now. If the bits are discarded, then no copy is made, and there's no violation of the reproduction right. The line I was referring to would be how much remains before discarding. At some point, if too much remains in the RAM, then there's a copy and a violation.
That's actually a really good question. To be fair to RIAA, downloading and streaming have different legal significances, which seem to me to be consistent with the technological differences (i.e. the reason you knew to ask that question). I'm not actually sure where the line is drawn, nor do I have a strong opinion on the policy behind drawing that line, for the reproduction right. However, it's not often an important question since they'll go after unauthorized distributors (Section 106(2)).
That said, if you rip from the stream you will violate the reproduction right if it is unauthorized. Because I don't think I made it clear enough earlier, unauthorized means that a) there is a valid copyright; b) the use is not exempt under Sections 107-122 (U.S.C. Title 17, ftr); c) the use was not exempt by the copyright holder's permission.
You just admitted that there are some special and limited cases. My original point was that you were overstating your position.
Also, the hypo used per-unit profit for illustrative purposes, but it was pointing to total profit (i.e. the only change to the equation was CGS and price).
Music is protected by copyright.
This is true. It's an expressive work.
The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
This is also true. If the DL/UL is unauthorized, it violates one of the exclusive rights under Section 106, subject to Sections 107-122. Downloading, where unauthorized, is a violation of the reproduction right (Section 106(1)). This does not apply to public domain works, because they are not copyrighted. This does not apply to you recording a radio broadcast because of Section 114. Even without Section 114, however, since there are substantial non-infringing uses for your radio that can download broadcasts, the device would be fine (Sony Corp. of America v. Universal City Studios, 464 US 417 (1984))
Now, if you are wondering why the act of downloading a copyrighted work without authorization is illegal, it's because you make a copy when doing so. Even if it's only in your RAM or cache.
Sigh. You're not being creative enough. I never said that adjusting price upward cannot result in lower profits. I said that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect. Your original claim was that it follows necessarily ("their cost has got to come out of your profit"). My hypo gave an admittedly simplistic example of why that is not necessarily true.
You made my point for me, and somehow think I am wrong. Some sales are lost. The real question is, as I just said, "whether the net effect of piracy is a positive for the music industry." Whether it is "a hell of a lot less than the number of total downloads" is a huge statement that you've not supported in the least. It requires far more context to be meaningful, which is why there's really nothing you could have said to make it better barring an actual fact pattern. In any case, I am certainly not equating copies downloaded and sales lost. In fact, I made this point hours ago in this thread somewhere - not that I'd expect you to have read it.
Not sure what parallel universe you're living in, but yes that is exactly what it means. If costs go up, profits go down. Really, it's a mathematical fact: Profits = Revenues - Costs. Costs big, profits small. I don't think I can make this any simpler for you.
You're missing the point. I'm not describing the relationship between revenue and costs on the income statement. I'm describing the relationship between expected value and your input. That is, if you have personal costs (like personal instruments), you adjust upward what you charge if you don't want to damage your profit.
Hypo: Let's say you want to make $10 per good sold, and can make widgets for $3 with no other expenses. Obviously you would sell it for $13. Now let's say you want to use your own X to make the widget (higher quality perhaps). Well, now it costs you $4, but you still want to make $10 per good sold. Now you have to adjust the price up to $14. So in an accounting sense, the increase in cost of goods sold went up, along with the price, so it comes out of profit because the cost of goods sold increased. However, you don't have to adjust downward the amount of profit you expect ($10/widget).
Wanting to make money doesn't make you greedy.
Again, that's pretty much exactly what the word means. Well, wanting to make 'excessive' amounts of money, anyway.
You've got some powerful Orwellian newspeak going on in your head.
See, your "well ..." is my exact point. You managed to deny my point, concede it, and insult me at the same time. Impressive.
I am no RIAA supporter, but just a brief look on their website doesn't show that sort of propaganda that you speak of. Can you provide some examples? I'm curious if which side of the aisle this propaganda is coming from. Their site refers to "music theft", "piracy", and "illegally upload[ed] or download[ed] music online." I also see stuff like, "[w]e . . . educate fans about . . . the right ways to acquire [music]." The first thing the site says about the law is that "When you make illegal copies of someone’s creative work, you are stealing and breaking the law."
In fact, they give examples of situations where you could be violating the law. Keyword could. Careful reading is important, especially when dealing with the law. The examples refer to "copyrighted songs" (i.e. not in the public domain. Could this be a valid transmission? Sure. It usually isn't, but all they claim was could) and unauthorized copies or distribution.
Source 1, Source 2
You can even see here that they refer to exceptions. My analogy is not invalid except against the strawman position that the RIAA just says "don't download music!" Point that out and I will eat my words so long as it isn't clear to the ordinarily prudent reader that they are referring to unauthorized uses.
Can you point out where they do that exactly? I'd like to parse their language to see if they're actually doing something unconscionable.
That aside, do people go around talking about murder with caveats of self-defense? No, people say "don't murder!"
To the artist? Probably not - but it should go to the artist.
There is something huge to be said about 1) having the institutional power to produce and release a product widely; and 2) the risk taken during production. The risk is not with the artist, but those bankrolling the artist.
You've narrowed the focus to support your point, but dismissed important elements that are incredibly relevant, undermining how far you chose to narrow.
Are the record labels and anybody else who directly benefits from increased sales volume really always getting what they've always gotten? Even a single person downloading an unauthorized copy, when they would have otherwise purchased a copy, decreases sales volume. The big question is whether the net effect of piracy is a positive for the music industry. I would put that burden on the pirates' back, however, and it seems courts agree with this position.
I have a tough time buying into the known vulnerability argument. At some point people should be responsible for their own actions, even if it's easy not to be.
Precise language should be concern #1. In that vein, I'm not sure what you mean by "even with the qualifier copyright added" here. I'm guessing you mean a qualifier added to music/files to make it "sharing copyrighted files is illegal" and "downloading copyrighted music is illegal."
On the one hand, the fair use defense does exist, making the statement not necessarily true. However, when we are dealing with exact copies, we might as well be talking in terms of infringement.
This is why I presented the question raised as I did. I said, "[t]he question raised by this brief is whether activity that is prima facie infringement is saved by a fair use defense."
A successful infringement action requires two prongs. First, plaintiff must assert and prove by a preponderance of the evidence a prima facie case for some rights (reproduction/distribution/perform/derivative/a few others that aren't directly relevant here). This prong requires a valid copyright, as well as a violation of plaintiff’s exclusive rights. Second, the alleged infringer must not be saved by a procedural shortfall like failing to register, statutory limitations like fair use, or other statutory exceptions.
Somebody mod this up. And somebody mod parent "way way wrong."
They tried DRM and people flipped shit. The only solution to the problem you outlined is making certain kinds of software illegal. Well, the Supreme Court realllllllly hates this idea. They want to see technological innovation, and concerning yourself with methods and creation of those methods stifles that, undermining the whole point of copyright.
They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).
A few points:
1) If the benefit were negligible, why would they do it? People are aware of the risks. Then, taking those risks into account, consider the benefit derived, and decide whether to pirate or not.
2) You may borrow a friend's CD, but you may not make a copy of it.
3) There is measurable harm. Let's say there were 1000 illegal copies made of Song X. Let's then say 40% of those copies made would have led to purchases of the song on iTunes or something similar. That's $400 of harm, and 40 cents of harm per illegal copy. The percentage doesn't really matter. It's just that you could find a percentage that matters. Finally, we're dealing with punitive damages here. Nevertheless I agree they were excessive. Copyright's job is to incentivize expression. I don't think the amount here optimally does so.
And that it comes out of profit doesn't mean you have to adjust downward the amount of profit you expect from your efforts. Wanting to make money doesn't make you greedy.
It doesn't sound like he/she believes a file format is illegal. Making a copy of an mp3 that you are unauthorized to copy (and if it's a song like one in this case then it is unauthorized) is piracy.
That you can still share mp3s in a non-pirating way is a total strawman here. The question raised by this brief is whether activity that is prima facie infringement is saved by a fair use defense. And it is a ridiculous argument. I honestly couldn't believe what I was reading.