Grokster seems to imply that if a P2P client is designed to directly facilitate, enable, and coerce infringement, then the Betamax safe harbor doesn't apply.
Compare original Napster to Apache. The lack of most bittorrent clients attempting to find media on a user's drive and share that out is a positive toward giving them the Betamax safe harbor for example.
I am most certainly not an RIAA fan (do some research and you'll figure out why), but publishing music on a public network absent a fair use defense is a violation of the exclusive rights of the owners of both the sound recording and the underlying song. The Digital Audio Transmission language in the exclusive rights of copyright holders is mooted if infringement requires more than publishing/distributing/making available to the public a digital audio transmission.
You can argue that RIAA should be arguing Section 106 (6) instead of 106 (3), but there are very strong arguments that violating (6) leads to a direct violation of (3) by substition/conversion.
Judges aren't morons on these issues. It's far safer to advise folks to not make available copyright material in whole that they don't have a license to distribute or a fair use right to use. It's one of the reasons that the original Napster probably was guilty of the intent standard for contributory infringement. If Napster and the media focused then future P2P clients didn't scan/share by default, they would have had the Betmax safe harbor. Of course, they would also be far less popular.
Your interpretation has to be plausible. Your interpretation nullifies "public performance by means of a digital audio transmission" as your reading doesn't allow for a use case that those words apply to.
You can't just 'disappear' some words from the law Pinochet style.
You need to go read the law about what a digital audio transmission is.
Do you think you wouldn't be breaking an NDA if you published confidential PDFs on a website absent proof that anyone downloaded? Would you think that your right to privacy was violated if someone posted your home address, social security number, mother's maiden name, and date of birth in a file even though there was no proof it was downloaded either? Also note that there is no proof that it was downloaded because the intent of the applications in question is to create no incriminating trace.
Ask yourself why people use P2P and not webservers. If they aren't breaking the law they should be happy to post these files on their home pages next to their names and email addresses, right?
Subject to sections 107 through 122, 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. ----
Publishing a song on a public, open network sure looks to violate 3 and 6 (and maybe 5.) It's a special term of art of copyright law, but making the song available is to "perform the copyrighted work publicly by means of a digital audio transmission" since anyone stopping by can click and start listening by means of a digital audio transmission.
It's always amusing to see engineers try to apply their logic to the law.
Good enough is not a standard for QA as binary doesn't like failure cases.
In civil law (less criminal) the standards are a preponderance of the evidence. Its why OJ walked on murder but lost on wrongful death.
Does an IP address identify a unique person? No. Does the DHCPd.leases file at the University lead you to the right machine on campus by MAC address? Yes. Does ownership of that machine often resolve down to one person? Generally excepting someone running a WAP, but even there there may be logs of MAC addresses connected. Good luck claiming that its your roomate's machine when your term papers are on it and it matches the MAC address hand out. You can choose a copyright civil case or a plagiarism violation.
The burden of proof to get discovery to figure out who a copyright owner is suing is pretty darn low. If you don't want to be a Doe in this case then you should only mooch off of P2P networks. It is a stretch for the RIAA to claim that you neccessarily copied the file illegally - you could have ripped it from your own collection. However, its not a stretch at all to accuse you and recover damages from you for publishing those files publicly - whether you understood it or not. Copyright infringement does not take scienter.
Axis of Sweden makes a Network Document Server that is a small (think mini ATX) linux appliance. It has a network port, an optional keyboard port, and a scsi or USB interface to drive multi-page scanners. Axis recommends which scanners work well and its most of the mutlipage scanners out there.
We use one of these in lieu of having a copier in our office, so I went with the more expensive one so that I could attach a more powerful scanner to it, but the less expensive USB multipage scanners from Xerox and Documate are pretty good.
Any company that doesn't have the time to simply file the SEC documents necessary to at least be on the OTC Bulletin Board should be a company that is considered a scam at best.
To see what I mean compare this press release on Yahoo Finance: http://biz.yahoo.com/bw/050118/185603_1. html to this statement to "investors" on the sanwire.com site: http://www.sanswire.com/sanswiretechnologie s/
Copyright infringement is at its heart a financial crime at most. I fully concur with you that the balance on the other end - copyrights expiring and rent seeking being mandated by special interests (aka studios and record companies) - is despicable. I wish the Supreme Court would have been willing to use the Duck test on Eldredge - "if it waddles and quacks its a duck" but do understand their desire to somewhat steer clear in the early instances from judicial activism on this point as copyright extension is an historically new phenomenon.
The reason the punishment of civil penalties fits the crime better than criminal is simply that publishing a Britney Spears.mp3 has 0 moral turpitude. At best the case is that you are depriving the temporary owners of federally guaranteed revenue of some small portion of that revenue. The NET act has no concept of misdemeanor copyright violation and by the sentencing guidelines an average napster/gnutella directory on an average users computer would place them in jeopardy of a federal felony. I'd much prefer that a bunch of "holier than though" 18 year olds not have federal criminal records for being young and ill advised.
I'd prefer a "speeding ticket" of a couple of hundred dollars personally, but then legitimate copyright participants will not be able to get the Justice Department to pay attention and do anything about a real issue.
Right there, way before the first ammendment, is the delegation of power to the federal government to enforce copyrights.
For all those people posting copyrighted material that they know full well is illegal to post which alternative is better? Criminal prosecution or civil liability? I think this makes the punishment far closer fit the crime.
Why Justice? Because that's the law enforcement arm of the federal government. This is an improvement to the NET act, not an extension.
Wackernagel's research which this is all based on doesn't take into consideration the rate of increase in effeciency that technology has and continues to create in production and utilization of resources.
For an in depth look, read this rebuttal at Reason Online.
I find it more than ironic that this forum misses the fact that technology is the enabling factor that makes this argument specious.
Slashdot Mirror
Grokster seems to imply that if a P2P client is designed to directly facilitate, enable, and coerce infringement, then the Betamax safe harbor doesn't apply.
Compare original Napster to Apache. The lack of most bittorrent clients attempting to find media on a user's drive and share that out is a positive toward giving them the Betamax safe harbor for example.
-G
Have you actually read Nimmer?
I am most certainly not an RIAA fan (do some research and you'll figure out why), but publishing music on a public network absent a fair use defense is a violation of the exclusive rights of the owners of both the sound recording and the underlying song. The Digital Audio Transmission language in the exclusive rights of copyright holders is mooted if infringement requires more than publishing/distributing/making available to the public a digital audio transmission.
You can argue that RIAA should be arguing Section 106 (6) instead of 106 (3), but there are very strong arguments that violating (6) leads to a direct violation of (3) by substition/conversion.
Judges aren't morons on these issues. It's far safer to advise folks to not make available copyright material in whole that they don't have a license to distribute or a fair use right to use. It's one of the reasons that the original Napster probably was guilty of the intent standard for contributory infringement. If Napster and the media focused then future P2P clients didn't scan/share by default, they would have had the Betmax safe harbor. Of course, they would also be far less popular.
-Gene
Your interpretation has to be plausible. Your interpretation nullifies "public performance by means of a digital audio transmission" as your reading doesn't allow for a use case that those words apply to.
You can't just 'disappear' some words from the law Pinochet style.
-G
You need to go read the law about what a digital audio transmission is.
Do you think you wouldn't be breaking an NDA if you published confidential PDFs on a website absent proof that anyone downloaded? Would you think that your right to privacy was violated if someone posted your home address, social security number, mother's maiden name, and date of birth in a file even though there was no proof it was downloaded either? Also note that there is no proof that it was downloaded because the intent of the applications in question is to create no incriminating trace.
Ask yourself why people use P2P and not webservers. If they aren't breaking the law they should be happy to post these files on their home pages next to their names and email addresses, right?
-Gene
So here is the law:
----
106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, 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.
----
Publishing a song on a public, open network sure looks to violate 3 and 6 (and maybe 5.) It's a special term of art of copyright law, but making the song available is to "perform the copyrighted work publicly by means of a digital audio transmission" since anyone stopping by can click and start listening by means of a digital audio transmission.
-G
It's always amusing to see engineers try to apply their logic to the law.
Good enough is not a standard for QA as binary doesn't like failure cases.
In civil law (less criminal) the standards are a preponderance of the evidence. Its why OJ walked on murder but lost on wrongful death.
Does an IP address identify a unique person? No. Does the DHCPd.leases file at the University lead you to the right machine on campus by MAC address? Yes. Does ownership of that machine often resolve down to one person? Generally excepting someone running a WAP, but even there there may be logs of MAC addresses connected. Good luck claiming that its your roomate's machine when your term papers are on it and it matches the MAC address hand out. You can choose a copyright civil case or a plagiarism violation.
The burden of proof to get discovery to figure out who a copyright owner is suing is pretty darn low. If you don't want to be a Doe in this case then you should only mooch off of P2P networks. It is a stretch for the RIAA to claim that you neccessarily copied the file illegally - you could have ripped it from your own collection. However, its not a stretch at all to accuse you and recover damages from you for publishing those files publicly - whether you understood it or not. Copyright infringement does not take scienter.
Axis of Sweden makes a Network Document Server that is a small (think mini ATX) linux appliance. It has a network port, an optional keyboard port, and a scsi or USB interface to drive multi-page scanners. Axis recommends which scanners work well and its most of the mutlipage scanners out there.
e x.htm
We use one of these in lieu of having a copier in our office, so I went with the more expensive one so that I could attach a more powerful scanner to it, but the less expensive USB multipage scanners from Xerox and Documate are pretty good.
http://www.axis.com/products/document_servers/ind
Any company that doesn't have the time to simply file the SEC documents necessary to at least be on the OTC Bulletin Board should be a company that is considered a scam at best.
. htmle s/
To see what I mean compare this press release on Yahoo Finance:
http://biz.yahoo.com/bw/050118/185603_1
to this statement to "investors" on the sanwire.com site:
http://www.sanswire.com/sanswiretechnologi
Pure grade A snake oil.
Take a look at Obsequim - http://obsbox.sourceforge.net/
Once up and configured it is relatively idiot proof.
Copyright infringement is at its heart a financial crime at most. I fully concur with you that the balance on the other end - copyrights expiring and rent seeking being mandated by special interests (aka studios and record companies) - is despicable. I wish the Supreme Court would have been willing to use the Duck test on Eldredge - "if it waddles and quacks its a duck" but do understand their desire to somewhat steer clear in the early instances from judicial activism on this point as copyright extension is an historically new phenomenon.
.mp3 has 0 moral turpitude. At best the case is that you are depriving the temporary owners of federally guaranteed revenue of some small portion of that revenue. The NET act has no concept of misdemeanor copyright violation and by the sentencing guidelines an average napster/gnutella directory on an average users computer would place them in jeopardy of a federal felony. I'd much prefer that a bunch of "holier than though" 18 year olds not have federal criminal records for being young and ill advised.
The reason the punishment of civil penalties fits the crime better than criminal is simply that publishing a Britney Spears
I'd prefer a "speeding ticket" of a couple of hundred dollars personally, but then legitimate copyright participants will not be able to get the Justice Department to pay attention and do anything about a real issue.
Right there, way before the first ammendment, is the delegation of power to the federal government to enforce copyrights.
For all those people posting copyrighted material that they know full well is illegal to post which alternative is better? Criminal prosecution or civil liability? I think this makes the punishment far closer fit the crime.
Why Justice? Because that's the law enforcement arm of the federal government. This is an improvement to the NET act, not an extension.
Don't forget that market forces apply to governments also.
The USSR learned all about bankruptcy.
Wackernagel's research which this is all based on doesn't take into consideration the rate of increase in effeciency that technology has and continues to create in production and utilization of resources.
For an in depth look, read this rebuttal at Reason Online.
I find it more than ironic that this forum misses the fact that technology is the enabling factor that makes this argument specious.
The road around my house in Woodside is so rough that I thought it was a pothole....