If someone, say, uploads a torrent titled Scar_DIVX_2007.torrent and the file content is Pixar's Car.avi, you are guilty of copyright infringement even if your intent is not to download Cars?
Well, you're liable for it anyway. Let's stick with civil infringement for now. In civil copyright infringement cases, intent is irrelevant; a strict liability standard is used. This is uncommon (other examples would be parking violations, and statutory rape) but that's what you're looking at. Even if it is unreasonable to expect you to know, and you did not know, that you were infringing, it doesn't matter.
the content file is WhiteNoiseWithScreechingSound.avi, you are still guilty because the fact that the file content aren't what you expect does not matter
No, it has to be a copyrightable file. White noise pretty certainly would not be; it's random. If the file was a few paragraphs of real, original text, repeated over and over again, that would be enough.
If MPAA distribute torrents for fake files and they own the right of distribution, then there is no copyright infringement, is there? MPAA gives you the right to download the fake files.
That depends on whether they really are giving you that right. I think that an argument can be made that they are, but I wouldn't take it as a sure thing that a court would say that they are. And if they aren't giving you that right (and they do have appropriate rights to the file, which is easy, since anyone can just throw something copyrightable together in a couple of minutes, tops) then you're infringing. You're not infringing on the work you thought you would be, but you're still infringing on something, which is good enough.
On the contrary, the implicit license angle seems unavoidabl to me. Without such implicit licenses the entire WWW breaks down. That's it, game over.
Oh, there are certainly implied nonexclusive licenses, and they're used as a matter of course. I don't think that they're threatened, I'm just saying that I think it could be tricky to argue that the MPAA, by their conduct, implied one in this specific case. It wouldn't jeopardize them in routine business, just in matters piratical. That this is occuring in the context of a sting conducted by the MPAA, and on networks which are probably predominantly used by pirates (not BT generally so much as the particular tracker networks they're probably using) is very important, IMO. Change the context, and the outcome will likely change.
Alternatively, they can try to claim copyright infringement on the file you actually got, not the one you intended to get.
That's what I'm saying they'd do.
But misleading people to download a disguised copyrighted work and then claim liability from copying the disguised work, should fall under some sort of unclean hands doctrine
Meh. The pirate has the unclean hands here -- he tried to download something of value. That he got something worthless and was caught by a wily copyright holder should get him off the hook? You'd have to have a lot of chuztpah to make that argument. And as you noted, it's a strict liability offense, so intent doesn't matter. Besides, it wouldn't matter anyway -- the intent was to infringe on a copyright. It wouldn't matter which specific one it was. An analagous situation of transferred intent would be if Alice tries to shoot Bob but misses and accidently shoots Carol. So long as she had the intent to shoot someone, it won't matter that she had no intention of shooting Carol.
If you're willing to engage in a crime, it isn't entrapment for the police to offer you an opportunity to break the law. So in your example, the policeman who does nothing more than offer to sell you drugs and who does sell you drugs, is not breaking the law and is not entraping you.
If you aren't trying to break the law, and you're more or less strongarmed into doing so -- i.e. induced by something more than a mere opportunity to do so -- then it can be entrapment. So if you didn't want to buy drugs, and refused the offer, but then the police threaten you into doing it, you'd have a decent entrapment defense.
That the file contents aren't what you expected doesn't change anything. As long as the contents are a copyrightable work, it doesn't much matter what work it is. It's similar to how undercover police might sell someone a ziploc bag of sugar, then arrest that person for attempting to purchase cocaine. Of course, if the work used was in the public domain, or licensed for everyone to download, that would throw a monkey wrench in MPAA's plan, but it's unlikely that they'd make that mistake....if the MPAA is uploading it isn't it an authorized download?
You could make the argument, but I don't think it's a very strong one. With a sympathetic judge, it could work, but they're usually not very sympathetic to people they see as wrongdoers.
Right. And those are the ones with the most value to humanity. So, why should we discourage making great works that stand the test of time, and encourage disposable crap? I thought I made this point rather clear in my previous post.
And there is no way for us to tell them apart at the time that we grant copyrights. Often, not even for decades or centuries. People think that Shakespeare was the greatest author in the English language now, but during his lifetime he was popular but not preeminent. For us to only encourage "great" works, without over encouraging and over protecting the crap that forms 90% or more of the overall body of works created, we'd have to be able to look into the future and also to accept the judgment of the people of the future as being superior to our own artistic sensibilities.
If the people of 2107 think that the best artistic work ever created was The Smurfs, how the hell are we expected to know this, and why are we expected to agree?
Since we can't distinguish one kind of work from the other, and since we can't encourage good works over bad, all that we can do with copyright is try to encourage as much creation as possible, in the hope that there will be more good works along with more bad, rather than more good and less bad.
This means encouraging not only original creation, but also encouraging unauthorized derivative creation. Shakespeare was a very unoriginal author who took plots and characters from pre-existing works and refashioned them into something a lot better. Damn near anyone could have made better Star Wars prequels than Lucas did -- and we ought to be giving them a chance. That's how we'll get them. And if we wait too long, no one will care to try, because who knows if Star Wars will remain popular in the future. Most things don't, after all.
I'd love to specifically encourage the creation of great works, but it is simply not possible, and even if it were, not likely to happen unless the work was appealing to both us and everyone after, which also isn't often the case. (e.g. no one from Van Gogh's time would have believed you if you said that his works would be seen as astoundingly good in the future, and why should they be forced into accepting it, when artistic merit is subjective anyway)
You want impossible things, and I think you ought to be more concerned with what's actually possible, even if it isn't as good.
This, as well as many other posts here, ignore the fact that when you lose copyright to a work you lose copyright to the character
The post didnt ignore it so much as was somewhat general. I should cover every small issue every time?
Anyway, yes, that's true. So what?
After which any movie studio, publisher, etc. is free not only to exploit these characters but make derivative works that could destroy these franchises.
No, they can't harm the franchise particularly. Sure, you could have the Disney version of Harry Potter or whatever. But there would still be two significant things about it. First, the character attributes would only enter the public domain as the work they were introduced in did. So if the first HP book hits the public domain, then while you could make a movie of it, you couldn't include details that were relevant but which didn't appear until later books. Nor could you go ahead and start on the next book in the series. This would tend to create forks of the franchise. There would be the original version, and a bunch of parallel versions.
This is a good thing. It opens up the franchise to competition, and lets the public decide which version is best. For example, imagine if the maximum term with renewals was 25 years. Star Wars came out in 1977, so it would hit the public domain in 2003. That would mean that new sequels (of the first movie, which weren't based on the others, which would be copyrighted a bit longer still) could be made. Better yet, new prequels could be made, which didn't have Lucas' involvement, and which didn't suck as much as his did.
The creators of a work would have their shot at it, but ultimately so would everyone else. Plenty of works like this exist. The earliest example I can think of are Homer's great epic poems the Illiad and the Odyssey. Virgil came along later and wrote what is essentially an epic fanfic, the Aenid, which is an unauthorized sequel of the Illiad that goes in different directions (dealing with the Trojan survivors, rather than the Greeks). It's a great work of literature, and there's nothing wrong with it. The world is better for it having been created, and if there were dozens or hundreds of forks from Star Wars or Harry Potter or whatever, then that would only improve things too. The good sequels would be good, and would give us different takes and new ideas on the underlying story. The bad ones would flop pretty readily and get ignored. Just because someone is a good author of the first work doesn't mean that all their work is going to be good. I've seen too damn many unauthorized derivatives that outshone the works they were based upon, to buy that bogus argument. The original author is an author like any other and is just as able to make good or bad works in the future, better or worse than others would do, without past performance being terribly indicative of future results.
Why shouldn't creators of work that's this memorable and can span multiple mediums be allowed to cash in on these things?
Because 1) works of this nature are pretty rare to begin with, and should not be allowed to dominate the discussion of what copyright ought to be. Think of all the books, and paintings, and ballets, and CDs, and so forth out there: not very many of them are part of a series that is as you describe. Leonardo never painted 'The Mona Lisa 2: Electric Boogaloo.' Copyright needs to deal with the majority of works, not the tiny minority of noteworthy works. Quantity is what is important to copyright, not quality. Copyright laws have no way of guaranteeing or even measuring artistic quality. And 2) the worst that will happen is that authors tend to shift from doing a series of connected works, to a number of generally unconnected works. So long as they're creating works, who cares about the specific subject matter? Are you going to criticize Dickens because all his novels were not direct sequels to 'The Pickwick Papers?' And 3) whether they create an authorized or unauthorized derivative, all t
Copyright exists more to protect publishers than authors. Publishers want monopolies. Without a copyright, there is no monopoly for any given work, and it's open to the free market. Reduce copyrights and the power of the publishers will diminish greatly. Why do you think they're the ones who are pushing for copyright all the time? If it worked against them, or gave artists power over them, they wouldn't.
Except that history proves otherwise. If anything, it points to the opposite.
No it doesn't. Millions upon millions of works are created all the time. A handful have any lasting value at all. For example, how many books from the 18th century do you have? How many from the 20th? Do you even know what the most popular book in England in 1752 was? I doubt it; and almost no one cares, in fact. But I bet a lot of us here read the latest Harry Potter book.
History proves that people don't give a crap about old stuff, with very very few exceptions.
This idea has the problem of penalizing people who are innovative and ahead of their time
So? Copyright is really nice because it only concentrates the profits of a work to the author. It doesn't guarantee any profits though. Van Gogh only ever sold one painting in his life. Copyright meant nothing to him, since no one cared about pirating his work. It did not protect him, since there was nothing to protect against. It did not help him, or incentivize him, since there were no profits to be had.
It would be better to not give those people copyrights, since they don't help them any, and it's better to not have them at all in such a case.
On the flip-side, it rewards people who make superficial, faddish junk that is soon forgotten.
That is correct. Copyright is about quantity, not quality. The law has no way to judge artistic merit, much less what the people of the future will have in the way of artistic sensibilities. As far as copyright goes, a million different reality tv shows are better than the one best novel that no one will ever care to read because it looks boring. If you want to encourage good art, try the NEA. Copyright does not care about what's good or bad, only what's popular.
I guess I still just don't get how someone else can make profit from something that I created just because X years have gone by.
Your problem is that you are looking at it backwards.
The real question is, why should everyone in the world give a creator a monopoly over his work, merely because he created it? The natural state of a work is the public domain, where everyone can enjoy it. And the natural state of man is to have freedom of speech, which copyright is an infringement on.
The answer is that if people think that giving a creator a monopoly will help the people more than it harms them, then it is in their own best interest to grant it.
Think about a municipal cable tv company. They get a monopoly from the municipality to operate cable tv services for a period of time. No one thinks that they should just get one -- it's because the municipality is exploiting the tv company, getting them to install and maintain expensive infrastructure that they have to have in order to supply (and charge for) cable tv. Once the monopoly runs out, the municipality gets the infrastructure and can open it to competition (which is ideal, free markets, and all) or put it on the block for another time-limited monopoly, if it's worthwhile to do so. This is the deal, and both sides know it, and both find it to their advantage, so it works.
In copyright, the public wants works to be created and published and in the public domain. Giving up a little of the latter temporarily results in a lot more of the former, so it is worth it to the public -- so long as it's limited in time and scope. The author wants as much of a monopoly as he can get, so he'll be happy with anything, but will also push for more, even when it's against the public interest, since it is in his interest to do so. This is where the false idea of 'I should get it forever merely because I created it' comes from. It's never actually been like that, you know.
But during their life? Hmmm... not an easy sell to me.
They should get the absolute minimum copyright that would still have caused them to create and publish the work. That's what the public wants from them. Giving them more is wasteful. It's like the city paying a billion dollars to have a contractor build a parking lot when a ten thousand dollars would've sufficed. Admittedly it is impossible to read the minds of authors, so we can't go case-by-case, but it's still possible to set things up so that it's better than a wasteful one-size-fits-all kind of thing.
First, the term should chiefly be based upon publication, which would be the release of the work to the public via distribution of copies, public performance or display, etc. At that point, you're no longer worried about publishers sitting on works, which they are highly unlikely to do anyway, since then they face competition from other publishers for the exact same work. Remember: publishers exploit artists, but they don't compete against them; they compete against other publishers, and support copyrights for that reason. Between creation and publication could be a span of some time, but not too much, since 1) we don't want authors sitting on works (as copyright is meant to, among other things, promote the public interest in having works published), and 2) we don't want works not intended to be copyrighted and published getting copyrighted later, e.g. personal letters that later become interesting to scholars, etc. (as copyright is also meant to encourage creation and publication of works that otherwise wouldn't be created and published, and these sorts of works would have been without copyrights).
Second, the terms can vary for different kinds of works. For example, computer software terms ought to be a lot shorter than the terms for proper literary works, like novels.
Third, we want highly granular terms, so that the author has to frequently re-evidence his desire for a copyright. If an author only cares about copyright for 20 years, and there was only one 25 year term, then that term would be 5 years too long. With many short terms and a renewal process, the author could stop bothering to renew after 20 years and the copyright could end immediately (given 5 year terms renewable 4 times, but in this case only renewed 3 times). When we had renewal terms, the vast majority of works that were copyrighted to begin with were not renewed!
Fourth, we also want formalities for initial registration so that works where the author doesn't care about copyright from the get-go become public domain works immediately. See the bit above about wanting to encourage the creation of works that otherwise wouldn't be created, but not to encourage the creation of works that would be created anyway.
Fifth, ignore the lifetime of the creator. Fixed-year terms are far more predictable for both people investing in the copyright, for the author himself, and for third parties who are waiting for the work to hit the public domain. We can safely ignore the creator's family, since virtually no works are profitable to begin with, much less for a long period of time. Works that could be used by the family to provide for themselves are about as rare as the author leaving behind a winning lottery ticket. If you are concerned for the author's family, then you should not support copyright as a way of helping them, since it almost never does. Instead support things that do help them, and better still, are helpful for everyone, and not just the handful of fantastically successful creators out there: life insurance, social welfare systems, reliable investments, IRAs, etc. Authors who use those, rather than relying on copyrights, are actually helping their families. Copyrights as a means of support for survivors is criminally irresponsible.
Sixth, studies indicate that for the tiny handful of works that have any economic value deriving from copyrights to begin with, that value is highly front-loaded. For example, a movie will earn 90% of its profits from its theatrical release within a few weeks, mostly during the first weekend. When it comes out on PPV, the same thing happens. Ditto for its release to rental stores and retail. Books, CDs, etc. are all pretty similar. A handful of works have lasting value, but they're so rare that it is foolish to create our policy around them, and granular renewal systems can help to weed the others out anyway. Other kinds of works (e.g. fine art) don't derive value from their copyrights. A poster of a Van Gogh is cheap. A perfect counterfei
Copyrights protect creative works once they are released into the public
No, they protect works upon creation. Further, there is some desirability in them doing so, or else we might have people stealing manuscripts in order to get around copyright. This has happened in the past, more or less, and should be dealt with.
Actually it's protected once you fix the work in a tangible medium of expression. But I would agree that strict notice formalities are a good thing and should be brought back.
Now, copyrights can be contested if prior art existed before you released your work and made your claim to copyright on it.
I think that you're confusing copyrights and patents. Copyrightable works have to be original, but they don't have to be novel (i.e. never done before). Patents have to be novel. It's entirely possible for Alice to create a copyrightable work, and for Bob to independently create and identical work and for Bob's work to also be copyrightable. So long as Bob doesn't copy from Alice, it's fine. That the works are identical doesn't matter.
free speech as they are not restricting original oration or free thinking
Free speech has nothing to do with originality. If I recite Hamlet, I use my right of free speech just as much as if I recite something I wrote myself. Both original and unoriginal speech are the same for first amendment purposes.
then an NDA is a good way to protect the rights of ownership
The GPL isn't a holy cow. While I would also prefer copyright reform (though far shorter terms than you suggest), I don't care about the effects of reform on the GPL specifically. Very few works in the entire realm of copyright use the GPL, and the big picture is what's important.
Actually, who defines what is a copy and where a copy is being made?
Courts that interpret the statutes written by legislatures is typically how this is done. In the US, for example, Congress has defined a copy as a material object, when they wrote the Copyright Act. The courts can interpret what that means, but it seems unlikely that they'd get very far with something so clear. I stick with US law, since that is what I know and/. mostly seems to have an American userbase.
You say that downloading from another country is making a copy across a border. Is it really? A copy is being made in the source country, that copy is being transmitted across the border, then another copy is being made in the target (downloader's) country.
Well, no. Remember, the word 'copy' means a material object. Don't use it in the colloquial sense. That means that no copies are transmitted, because a transmission isn't material, it's intangible. And in any event, it doesn't matter. Since the law prohibits making any copies, the copies made by the downloader -- such as when he fixes the work into RAM, or a hard drive, etc. -- are copies made within the downloader's country, subject to that country's laws.
Like buy CD in source country, copy it there (that is legal in some countries), import the copy, then copy locally (again may be perfectly legal).
A CD certainly is a material object. So bringing it into a country would be importation, even though transmitting that data over the Internet would not have been. Of course, since there are limits on what can be imported (most people misread the US statute regarding this, btw; it's more strict that it might initially appear) that may or may not be unlawful. The making the copy locally may or may not be unlawful. It's still making a copy, and making copies is prima facie illegal. That it's being copied from a CD rather than a server does not itself matter much. The provenance of the source is more important (and it is entirely possible that making a copy of the server-originating copy would be legal, under the right circumstances, where making a copy of the CD would not be).
Several more copies are being made from buffer to buffer as the data is being routed between the server and downloader's machine. Is the owner of every proxy and every router along the way volating copyright laws? Or do exceptions exist somewhere for these cases?
For US law, anyway, the owners of the infrastructure are generally going to be protected thanks to both 17 USC 512 and also that they pretty certainly lack culpability (in that whatever their equipment does, it's doing so at the request of the downloader, making that party responsible, and they're sufficiently out of the loop that even secondary liability won't work on them).
What bothers me is how distribution is construed to include uploading. I found the EFF's analysis in its amicus brief in Elektra v. Barker to be persuasive: that the plain statutory language limits the distribution right to distribution of tangible, material objects.
I agree; that's what the statute says, and I'd be happy to see precedents to the contrary be depreciated as a result. But I suspect that courts will not be pleased with the idea of the public at large having the opportunity to use -- even if they almost certainly won't -- some of the statutory licenses relied upon by the radio and tv transmitting industries, along with the other limits in the 106(4)-(6) rights, so this might not succeed.
But I'm also distributing (from) a lawfully made copy, so wouldn't the first sale exception apply?
No. The reason that courts presently think that uploading is distribution is because they're not taking the uploading / downloading process into account, and are instead looking at the beginning and end of the matter.
In a classic case of distribution that doesn't fall within first sale (i.e. distribution of unlawfully made copies) what happens is this: 1) Alice obtains a lawfully made copy of a work. 2) Alice engages in reproduction to create some unlawfully made copies of the work. 3) Alice distributes (e.g. sells) the unlawfully made copies to Bob. 4) Alice is left with her lawfully made copy, and Bob is left with an unlawfully made copy.
In a computer based case, what happens is this: 1) Alice obtains a lawfully made copy of a work. 2) Alice puts it on a server, and Bob downloads it, which together constitutes Alice 'distributing' the work to Bob. 3) Bob writes the work to some storage medium (e.g. RAM, hard drive, etc.) and creates a new, unlawfully made copy of the work, which constitutes Bob engaging in reproduction. 4) Alice is left with her lawfully made copy, and Bob is left with an unlawfully made copy.
If you ignore the stuff in the middle, these are similar enough that a court that didn't pay very close attention would think that they're the same. And since no one has bothered to really make this argument before, courts have not had to pay attention, because the rule in court is that if a point is not disputed, it is just accepted, even if it is wrong. It is up to the parties to make arguments that advance their case, and not the place of the court to help either side. That the courts are annoyingly fussy about the technical workings of downloading and how they do constitute reproduction infringement as a matter of course is because someone did make that argument in the past, causing the courts to look at the issue. All together, it's a bit of a pisser.
But getting back to your question, even if the courts decide to stick with uploading as distribution rather than as performance or display, there's no chance that they'll say that uploading a copy in a process where another copy is ultimately produced falls under first sale. It's bad behavior, as far as they're concerned, and they won't use the available slack in their interpretation to help the people doing it.
In any event, until something happens with this, the precedents indicate that it's distribution, so for general-purpose/. posts, it's an appropriate word to use. Hopefully in the near future we'll be talking about the reproduction right and the performance and display rights.
No, the Constitution does apply even when minors are involved. Age has nothing to do with it (other than the voting age). But the Constitution basically just establishes and limits the powers of the government. Since a child's parents are not the government, the child's Constitutional right to privacy has no effect on the parents. Government-run schools are subject to the Constitution, but have been allowed some leeway as they act in a custodial capacity while the child is at school. Nevertheless, I would like to see schools more circumscribed in what they can do.
As for children being able to buy videogames, no law prohibits them from being able to do so. Sellers may voluntarily decide to sell or not sell games to children, but that's it. It's just like going to the movies (where ratings are a private matter for the theater to abide by or not as they like).
I hear you say that if you copy a lot of CD's, copy songs, and sell the CD's you don't think that would be fair use.
Well, no, I think that if you copy the CDs with the plan of selling the CDs to recoup your expenses, then the copying would not be a fair use. But if you copy the CDs and then happen to sell them, but the two events are unrelated, then it is a fair use. As with Patry (who feels that the former example is also fair), I don't care about the sale of the CDs for its own sake, I just care about the circumstances surrounding the making of the copies. All that Patry and I differ on is that he only cares about events that occur up to the time of the making of the copies, whereas I think that a court could look at events that occur later, if they help to evidence what was really happening at the time of making the copies.
Do you think if you buy a lot of CD's, copy songs, and then have the CD's stolen or destroyed, would keeping them be fair game?
Absolutely. Again, Patry would find it a fair use. I differ from Patry in that I think that events that occur after the fair use can still help to show whether or not that use really was fair or not. Since the person who made the copies didn't intend for their originals to be lost, the copies were never meant to effectively be a substitute for buying lawfully made copies of the music. That they acted prudently doesn't mean that they acted wrongly. Again, remember that the fair use is the creation of the copies. Keeping the copies is always lawful, regardless of whether they were made lawfully or unlawfully. I really don't understand why you're so obsessed with it; it's a non-issue. What you ought to be interested in, and what I keep discussing, is the creation of the copies.
The sony license doesn't allow that.
The Sony license is pretty defunct, it seems, and no one else has anything like it, so who cares?
Industry executives (and I assume their lawyers) would argue that fair use doesn't cover that
Since keeping copies -- regardless of their provenance -- is never infringing, fair use never even enters the discussion. After all, something cannot be a fair use unless it can be infringing in the first place. It's as silly as talking about the 'crime' of not murdering people.
(since how is it different than selling them- and how can you prove you didn't sell them- and if not then you could sell them and claim they were stolen).
It's different in that if the copies were made as a substitute for buying a lawfully made copy of the music, then while this could be done by making a copy of the CD without ever buying it, one could achieve pretty similar results by buying the CD, making the copy, then reselling the CD in order to recover the cost of buying it. The end result is basically the same. But if you didn't sell or give away the CD, but instead lost it or had it stolen, etc. then the copies you made were not a substitute for buying it, they were a substitute for buying a replacement. I think that that is a very significant difference.
As for lying about the fate of the CDs, that's merely a factual matter for the jury to decide. If the jury believes your story, then the fair use analysis will proceed accepting as true that the CDs were lost. If the jury doesn't believe your story, then the fair use analysis will proceed accepting as true that the CDs were not lost, and were instead sold, or something. Don't worry about this sort of thing, it's not really relevant to the legal issues.
There is a long accepted and legal practice of recording songs off the radio
Long accepted, yes. Legal, don't be so sure. I remember when the RIAA ran ad campaigns condemning the practice, e.g. 'Home Taping is Killing Music.' (Which resulted in some bands, like the Dead Kennedys, selling their albums on tape with one blank side so as to help kill music) The AHRA was finally passed because 1) lawmakers and the public didn't really have a problem with it, and wanted it to
I do not believe that there is not a court in the land that would look at you repeatedly buying CD's, copying songs off them, and then SELLING THE CD's, as "fair". I believe if you try to do this in an organized fashion with other people, they would come down on you really hard.
I agree. I don't think that it would be a fair use.
If you recorded the same songs off the radio, I do not think you would have any problems.
For the purposes of a fair use discussion, there's no difference whether you make copies from one medium or another. If making the copies is a substitute for buying lawfully made copies, that's what's key.
kept it quiet then you will probably "get away" with it
Sure, but most people who simply use P2P networks get away with it too. I thought that we were discussing what was legitimate.
However, lots of people pay big fines because of advice about similar "loopholes" in the tax system based on advice given to them. If you are actually an attorney and have experience in this area (which I can't know) then you go for it. But the courthouse is littered with the bodies of people who thought they could do stuff like this.
I fear that you might be misunderstanding me. I agree that it's a bad idea to try to set up organized personal piracy rings, and I don't plan to do so, nor would I encourage or advise anyone else to do so. A blue sky discussion on/. -- in which I was basically just trying to correct the misunderstanding that personally-made copies have to be disposed of along with authorized copies -- shouldn't be construed as my advice, or blessing, or anything.
Creating a new copy is reproduction. It is infringing, unless there is a applicable exception. Transferring possession or ownership of a copy is distribution. It is also infringing, unless there is a applicable exception. Possession is not infringing, ever.
Let's start with distribution, since it's simpler. It is illegal to distribute any copy, even original copies made by the copyright holder, unless there is an applicable exception. The most commonly used exception for distribution is first sale, which is codified at 17 USC 109. It basically says that distribution of copies which are lawfully made is not an infringement. For example, if you buy a CD at a store, and the CD was lawfully made by the copyright holder (or under his authority), then that is a lawfully made CD and you can turn around and give it away, sell it, etc. OTOH, if you buy a CD from someone on Canal Street in New York, and the CD was unlawfully made by a pirate, then that is an unlawfully made CD, and it is just as illegal for you to sell it or give it away as it was for the person on the street to sell it to you. Nevertheless, since possession is not infringing, it is lawful for you to own the CD and use it, so long as you don't distribute it further.
It is important to note that the first sale law allows redistribution of lawfully made copies, rather than authorizedly made copies. If a copy is lawfully made without the authorization of the copyright holder, then it is exactly as lawfully made as one that was made with authorization. There is no legal difference between the two copies. So if you can find a way to make a copy lawfully, even though the copyright holder wants you to not make that copy, then you can lawfully sell it.
Bearing this in mind, the question is whether there is a way to make new copies lawfully. There aren't many viable means, and the chief one for our purposes is fair use. As it happens, any otherwise infringing action (reproduction, distribution, public performance, etc.) which is fair, is non infringing; it's not limited to making more copies. However, each fair use is considered on its own merits. What is fair for Alice may not be fair for Bob because of their different circumstances.
In deciding whether something is a fair use, a court will look at four factors. The test isn't mathematical, it's looking for what's ultimately fair. The first factor is the purpose and character of the use, inclusive of whether the use is transformative (i.e. it creates a new work, as is the case in a parody, or a collage), and whether the use is commercial, or educational, etc. The second factor is the nature of the work, i.e. whether the work is basically factual (e.g. a history book, a copyrightable compilation of facts) or is creative (e.g. a fictional story, most music, etc.). The third factor is the amount and substantiality of the portion of the work used, i.e. whether you used all or only some of it, and if only some, did you use the important part. The fourth factor is the effect of the use on the value or potential market for the work.
In the case of making a copy of a CD for personal use, e.g. a rip of a CD to an iPod, the analysis would likely work out that the first three factors are against the use (since it's not transformative or educational, the work is creative, and it uses the entire work (the quality of the rip is irrelevant). But the fourth factor is with the use, since making a personal copy has no significant effect on the value of the work. This is subject to change, however, and the rise of iTMS is actually harmful to the argument that ripping CDs is fair use, since now there's an alternative to ripping.
If making the copy is a fair use, then the copy is lawfully made and will remain lawfully made forever. Whatever happens to the original CD, it'll never have any effect on the status of the copy you made. Not only is it legal to sell the original CD, but it's even legal to sell the copy you made (to someone else, naturally) -- th
Yes but in the my original post, the opinion of record industry executives is that this is true even without the license.
Perhaps, but that doesn't mean that they actually know the law all that well either. Who do you think hires copyright lawyers? Honestly, though, I find it doubtful.
You buy the CD, make a copy of a song and then sell the CD- you clearly lose the right to keep copies of the song.
No, it's not clear. In fact, Patry, who has advised Congress, writes an influential treatise, teaches, and is a big-name copyright lawyer, and who you were citing earlier, thinks that you don't lose any rights in such an example.
You buy the CD, make a copy of a song and then give away the CD- you clearly lose the right to keep copies of the song.
This is not distinguishable from the previous example. Sell, give, whatever, it's all the same for our purposes.
You buy the CD and it breaks- they argue you lose the rights- a reasonable person would say you had the rights to copies (FROM that CD- not from other sources) as long as you had possession of the broken CD.
No, possession of the broken copy wouldn't be relevant, and neither would the source, really (though the provider may face a stand-in-the-shoes problem).
I think that you are forgetting or misunderstanding that copyright law does not prohibit possession of anything. Rather it prohibits certain actions. Making a copy may be unlawful. Possessing an unlawfully-made copy is never unlawful, however. This is why it is wrong to speak of infringing copies, since there is no such thing; copies don't infringe, people do. The copies are just made in an infringing manner. This is why Patry takes the position that he does -- because what he sees as key is whether the copies were made lawfully at the time that they were made since nothing that comes later is even slightly relevant. My more conservative position is that a court might consider events that occurred after the time the copies were made in order to determine whether the copies were made lawfully at the time they were made. But even then, the issue is still whether the copies were made lawfully. If they were, then they'll be lawfully-made copies forever, and nothing can ever change that. And if they were made unlawfully, then they are unlawfully made copies forever, and nothing can change that either.
Hell- I hate them and even I can see their logic. I argue the license to the music should be stored externally so you can easily qualify for an inexpensive replacement of the song.
I'm sorry, but that's faulty logic, then. There is no such thing as a license to music that comes on CDs in stores at the consumer level. Apparently Sony was trying something (and it was blatant) and they seem to have stopped trying. You're basically arguing nonsensical stuff that is simply not related to what the law actually is.
What the law says, and what therefore applies in the absence of a license that you simply could not fail to miss if it existed (it usually doesn't, which is why you don't notice them) is that the act of making a copy of music might be illegal, but that if it is legal, then nothing that happens to the original will ever have any effect on the copy. The legal discussions you were looking at were people trying to figure out whether the making of the copy would be legal at all. Everyone knowledgable on this is in agreement that legal copies are legal forever and that there is simply no such law that you have to get rid of them along with the original.
There is a law that is like that in conjunction with software, but it doesn't apply to music, or to copies made under the aegis of fair use. It only applies to copies made pursuant to 17 USC 117. Ironically, almost no one ever uses 117, because EULAs, if they are effective, interfere with it.
It's true that I'm not a lawyer but come on, intent does matter.
Most of the time, that's correct. Intent does matter.
But there are exceptions where intent is irrelevant, and copyright happens to be one of them. Copyright infringement is a strict liability offense at the civil level (though it requires wilfulness at the criminal level, and willfulness is also useful for getting extra civil damages). The wikipedia entry for strict liability is here, if it'll help you out. You might want to compare it by looking at their pages on culpability and mens rea.
That doesn't matter. Copyright is a strict liability statute. It is entirely possible and common to infringe on a copyright and have to pay significant damages, even when you had no idea that you were breaking the law, and could not have possibly known otherwise. It's pretty strict, really.
I find it more likely that AllOfMP3 has a valid license to distribute than anything the RIAA says.
Well, the question is where did they get that license from? A license to distribute to people in the US, and to sub-license those people to make copies in the US, can only come from the US copyright holder, or from someone authorized by the US copyright holder to sublicense the relevant rights. Essentially, that's the RIAA members, who are the very ones claiming that they didn't grant such a license. While many people have said that Allofmp3 uses a statutory license administered by ROMS, all this means is that Russian law has created a license that applies to all Russian copyrights. That's not an unusual thing, there are statutory licenses in the US. But such licenses are not of extraterritorial effect. US copyright law doesn't control what goes on within Russia, but Russian copyright law -- which is the origin of the license Allofmp3 claims to have -- cannot control what goes on in the US. So even if we accept that Allofmp3 is fully in compliance with Russian law, their actions directed into the US, and their US customers, are up shit creek.
Assuming that's actually true - which would require proving that AllOfMP3.com doesn't have a valid license to distribute music
Actually, that would require Allofmp3 proving that they do have an applicable license. The prima facie case for RIAA is simply that they have the relevant copyright interests and that infringing acts occurred. If Allofmp3 doesn't show up, then a default judgment will be entered against them. At a minimum, even if they only want to contest jurisdiction, they still need to show up in order to do that. Ignoring this would certainly not help them any, though it is debatable as to whether it would hurt them in a practical sense.
Of course, since you purchased the music in good faith, you have a strong defense.
No, that is not a defense at all, and probably won't even result in a reduction of damages for most people. Good faith is irrelevant, but not knowing that the work was copyrighted at all, could be helpful. Good luck with that argument, though, especially given how hard it is to prove.
Since this lawsuit is in a court that has no jurisdiction over AllOfMP3.com
No, US courts have jurisdiction over all entities that do business across our national border. Enforcing a judgment against Allofmp3 will be tricky, if they have no assets in the US, but jurisidction is easy.
Yes, but it's pretty exceptional. If you'll look at the EFF article you linked to, you'll see that the norm for music distributed on CD is that there is no licensure at all -- you simply own the CD, and have rights to do whatever you want to it, and the music therein, so long as you don't break the law in the process. You can see how far Sony had to go in order to try to deviate from this norm, and you'll note that even now, pretty much no one does it, and IIRC Sony has backed off for now. Still, I'd prefer to see the actual text of the thing, rather than rely on other peoples' readings of it.
Slashdot Mirror
If someone, say, uploads a torrent titled Scar_DIVX_2007.torrent and the file content is Pixar's Car.avi, you are guilty of copyright infringement even if your intent is not to download Cars?
Well, you're liable for it anyway. Let's stick with civil infringement for now. In civil copyright infringement cases, intent is irrelevant; a strict liability standard is used. This is uncommon (other examples would be parking violations, and statutory rape) but that's what you're looking at. Even if it is unreasonable to expect you to know, and you did not know, that you were infringing, it doesn't matter.
the content file is WhiteNoiseWithScreechingSound.avi, you are still guilty because the fact that the file content aren't what you expect does not matter
No, it has to be a copyrightable file. White noise pretty certainly would not be; it's random. If the file was a few paragraphs of real, original text, repeated over and over again, that would be enough.
If MPAA distribute torrents for fake files and they own the right of distribution, then there is no copyright infringement, is there? MPAA gives you the right to download the fake files.
That depends on whether they really are giving you that right. I think that an argument can be made that they are, but I wouldn't take it as a sure thing that a court would say that they are. And if they aren't giving you that right (and they do have appropriate rights to the file, which is easy, since anyone can just throw something copyrightable together in a couple of minutes, tops) then you're infringing. You're not infringing on the work you thought you would be, but you're still infringing on something, which is good enough.
On the contrary, the implicit license angle seems unavoidabl to me. Without such implicit licenses the entire WWW breaks down. That's it, game over.
Oh, there are certainly implied nonexclusive licenses, and they're used as a matter of course. I don't think that they're threatened, I'm just saying that I think it could be tricky to argue that the MPAA, by their conduct, implied one in this specific case. It wouldn't jeopardize them in routine business, just in matters piratical. That this is occuring in the context of a sting conducted by the MPAA, and on networks which are probably predominantly used by pirates (not BT generally so much as the particular tracker networks they're probably using) is very important, IMO. Change the context, and the outcome will likely change.
Alternatively, they can try to claim copyright infringement on the file you actually got, not the one you intended to get.
That's what I'm saying they'd do.
But misleading people to download a disguised copyrighted work and then claim liability from copying the disguised work, should fall under some sort of unclean hands doctrine
Meh. The pirate has the unclean hands here -- he tried to download something of value. That he got something worthless and was caught by a wily copyright holder should get him off the hook? You'd have to have a lot of chuztpah to make that argument. And as you noted, it's a strict liability offense, so intent doesn't matter. Besides, it wouldn't matter anyway -- the intent was to infringe on a copyright. It wouldn't matter which specific one it was. An analagous situation of transferred intent would be if Alice tries to shoot Bob but misses and accidently shoots Carol. So long as she had the intent to shoot someone, it won't matter that she had no intention of shooting Carol.
I know. That's why I said "similar." It's still a kind of sting.
No, you're wrong.
A better name for entrapment would be inducement.
If you're willing to engage in a crime, it isn't entrapment for the police to offer you an opportunity to break the law. So in your example, the policeman who does nothing more than offer to sell you drugs and who does sell you drugs, is not breaking the law and is not entraping you.
If you aren't trying to break the law, and you're more or less strongarmed into doing so -- i.e. induced by something more than a mere opportunity to do so -- then it can be entrapment. So if you didn't want to buy drugs, and refused the offer, but then the police threaten you into doing it, you'd have a decent entrapment defense.
That the file contents aren't what you expected doesn't change anything. As long as the contents are a copyrightable work, it doesn't much matter what work it is. It's similar to how undercover police might sell someone a ziploc bag of sugar, then arrest that person for attempting to purchase cocaine. Of course, if the work used was in the public domain, or licensed for everyone to download, that would throw a monkey wrench in MPAA's plan, but it's unlikely that they'd make that mistake. ...if the MPAA is uploading it isn't it an authorized download?
You could make the argument, but I don't think it's a very strong one. With a sympathetic judge, it could work, but they're usually not very sympathetic to people they see as wrongdoers.
Right. And those are the ones with the most value to humanity. So, why should we discourage making great works that stand the test of time, and encourage disposable crap? I thought I made this point rather clear in my previous post.
And there is no way for us to tell them apart at the time that we grant copyrights. Often, not even for decades or centuries. People think that Shakespeare was the greatest author in the English language now, but during his lifetime he was popular but not preeminent. For us to only encourage "great" works, without over encouraging and over protecting the crap that forms 90% or more of the overall body of works created, we'd have to be able to look into the future and also to accept the judgment of the people of the future as being superior to our own artistic sensibilities.
If the people of 2107 think that the best artistic work ever created was The Smurfs, how the hell are we expected to know this, and why are we expected to agree?
Since we can't distinguish one kind of work from the other, and since we can't encourage good works over bad, all that we can do with copyright is try to encourage as much creation as possible, in the hope that there will be more good works along with more bad, rather than more good and less bad.
This means encouraging not only original creation, but also encouraging unauthorized derivative creation. Shakespeare was a very unoriginal author who took plots and characters from pre-existing works and refashioned them into something a lot better. Damn near anyone could have made better Star Wars prequels than Lucas did -- and we ought to be giving them a chance. That's how we'll get them. And if we wait too long, no one will care to try, because who knows if Star Wars will remain popular in the future. Most things don't, after all.
I'd love to specifically encourage the creation of great works, but it is simply not possible, and even if it were, not likely to happen unless the work was appealing to both us and everyone after, which also isn't often the case. (e.g. no one from Van Gogh's time would have believed you if you said that his works would be seen as astoundingly good in the future, and why should they be forced into accepting it, when artistic merit is subjective anyway)
You want impossible things, and I think you ought to be more concerned with what's actually possible, even if it isn't as good.
This, as well as many other posts here, ignore the fact that when you lose copyright to a work you lose copyright to the character
The post didnt ignore it so much as was somewhat general. I should cover every small issue every time?
Anyway, yes, that's true. So what?
After which any movie studio, publisher, etc. is free not only to exploit these characters but make derivative works that could destroy these franchises.
No, they can't harm the franchise particularly. Sure, you could have the Disney version of Harry Potter or whatever. But there would still be two significant things about it. First, the character attributes would only enter the public domain as the work they were introduced in did. So if the first HP book hits the public domain, then while you could make a movie of it, you couldn't include details that were relevant but which didn't appear until later books. Nor could you go ahead and start on the next book in the series. This would tend to create forks of the franchise. There would be the original version, and a bunch of parallel versions.
This is a good thing. It opens up the franchise to competition, and lets the public decide which version is best. For example, imagine if the maximum term with renewals was 25 years. Star Wars came out in 1977, so it would hit the public domain in 2003. That would mean that new sequels (of the first movie, which weren't based on the others, which would be copyrighted a bit longer still) could be made. Better yet, new prequels could be made, which didn't have Lucas' involvement, and which didn't suck as much as his did.
The creators of a work would have their shot at it, but ultimately so would everyone else. Plenty of works like this exist. The earliest example I can think of are Homer's great epic poems the Illiad and the Odyssey. Virgil came along later and wrote what is essentially an epic fanfic, the Aenid, which is an unauthorized sequel of the Illiad that goes in different directions (dealing with the Trojan survivors, rather than the Greeks). It's a great work of literature, and there's nothing wrong with it. The world is better for it having been created, and if there were dozens or hundreds of forks from Star Wars or Harry Potter or whatever, then that would only improve things too. The good sequels would be good, and would give us different takes and new ideas on the underlying story. The bad ones would flop pretty readily and get ignored. Just because someone is a good author of the first work doesn't mean that all their work is going to be good. I've seen too damn many unauthorized derivatives that outshone the works they were based upon, to buy that bogus argument. The original author is an author like any other and is just as able to make good or bad works in the future, better or worse than others would do, without past performance being terribly indicative of future results.
Why shouldn't creators of work that's this memorable and can span multiple mediums be allowed to cash in on these things?
Because 1) works of this nature are pretty rare to begin with, and should not be allowed to dominate the discussion of what copyright ought to be. Think of all the books, and paintings, and ballets, and CDs, and so forth out there: not very many of them are part of a series that is as you describe. Leonardo never painted 'The Mona Lisa 2: Electric Boogaloo.' Copyright needs to deal with the majority of works, not the tiny minority of noteworthy works. Quantity is what is important to copyright, not quality. Copyright laws have no way of guaranteeing or even measuring artistic quality. And 2) the worst that will happen is that authors tend to shift from doing a series of connected works, to a number of generally unconnected works. So long as they're creating works, who cares about the specific subject matter? Are you going to criticize Dickens because all his novels were not direct sequels to 'The Pickwick Papers?' And 3) whether they create an authorized or unauthorized derivative, all t
Copyright exists more to protect publishers than authors. Publishers want monopolies. Without a copyright, there is no monopoly for any given work, and it's open to the free market. Reduce copyrights and the power of the publishers will diminish greatly. Why do you think they're the ones who are pushing for copyright all the time? If it worked against them, or gave artists power over them, they wouldn't.
Except that history proves otherwise. If anything, it points to the opposite.
No it doesn't. Millions upon millions of works are created all the time. A handful have any lasting value at all. For example, how many books from the 18th century do you have? How many from the 20th? Do you even know what the most popular book in England in 1752 was? I doubt it; and almost no one cares, in fact. But I bet a lot of us here read the latest Harry Potter book.
History proves that people don't give a crap about old stuff, with very very few exceptions.
This idea has the problem of penalizing people who are innovative and ahead of their time
So? Copyright is really nice because it only concentrates the profits of a work to the author. It doesn't guarantee any profits though. Van Gogh only ever sold one painting in his life. Copyright meant nothing to him, since no one cared about pirating his work. It did not protect him, since there was nothing to protect against. It did not help him, or incentivize him, since there were no profits to be had.
It would be better to not give those people copyrights, since they don't help them any, and it's better to not have them at all in such a case.
On the flip-side, it rewards people who make superficial, faddish junk that is soon forgotten.
That is correct. Copyright is about quantity, not quality. The law has no way to judge artistic merit, much less what the people of the future will have in the way of artistic sensibilities. As far as copyright goes, a million different reality tv shows are better than the one best novel that no one will ever care to read because it looks boring. If you want to encourage good art, try the NEA. Copyright does not care about what's good or bad, only what's popular.
I guess I still just don't get how someone else can make profit from something that I created just because X years have gone by.
Your problem is that you are looking at it backwards.
The real question is, why should everyone in the world give a creator a monopoly over his work, merely because he created it? The natural state of a work is the public domain, where everyone can enjoy it. And the natural state of man is to have freedom of speech, which copyright is an infringement on.
The answer is that if people think that giving a creator a monopoly will help the people more than it harms them, then it is in their own best interest to grant it.
Think about a municipal cable tv company. They get a monopoly from the municipality to operate cable tv services for a period of time. No one thinks that they should just get one -- it's because the municipality is exploiting the tv company, getting them to install and maintain expensive infrastructure that they have to have in order to supply (and charge for) cable tv. Once the monopoly runs out, the municipality gets the infrastructure and can open it to competition (which is ideal, free markets, and all) or put it on the block for another time-limited monopoly, if it's worthwhile to do so. This is the deal, and both sides know it, and both find it to their advantage, so it works.
In copyright, the public wants works to be created and published and in the public domain. Giving up a little of the latter temporarily results in a lot more of the former, so it is worth it to the public -- so long as it's limited in time and scope. The author wants as much of a monopoly as he can get, so he'll be happy with anything, but will also push for more, even when it's against the public interest, since it is in his interest to do so. This is where the false idea of 'I should get it forever merely because I created it' comes from. It's never actually been like that, you know.
But during their life? Hmmm... not an easy sell to me.
They should get the absolute minimum copyright that would still have caused them to create and publish the work. That's what the public wants from them. Giving them more is wasteful. It's like the city paying a billion dollars to have a contractor build a parking lot when a ten thousand dollars would've sufficed. Admittedly it is impossible to read the minds of authors, so we can't go case-by-case, but it's still possible to set things up so that it's better than a wasteful one-size-fits-all kind of thing.
I disagree.
In no particular order:
First, the term should chiefly be based upon publication, which would be the release of the work to the public via distribution of copies, public performance or display, etc. At that point, you're no longer worried about publishers sitting on works, which they are highly unlikely to do anyway, since then they face competition from other publishers for the exact same work. Remember: publishers exploit artists, but they don't compete against them; they compete against other publishers, and support copyrights for that reason. Between creation and publication could be a span of some time, but not too much, since 1) we don't want authors sitting on works (as copyright is meant to, among other things, promote the public interest in having works published), and 2) we don't want works not intended to be copyrighted and published getting copyrighted later, e.g. personal letters that later become interesting to scholars, etc. (as copyright is also meant to encourage creation and publication of works that otherwise wouldn't be created and published, and these sorts of works would have been without copyrights).
Second, the terms can vary for different kinds of works. For example, computer software terms ought to be a lot shorter than the terms for proper literary works, like novels.
Third, we want highly granular terms, so that the author has to frequently re-evidence his desire for a copyright. If an author only cares about copyright for 20 years, and there was only one 25 year term, then that term would be 5 years too long. With many short terms and a renewal process, the author could stop bothering to renew after 20 years and the copyright could end immediately (given 5 year terms renewable 4 times, but in this case only renewed 3 times). When we had renewal terms, the vast majority of works that were copyrighted to begin with were not renewed!
Fourth, we also want formalities for initial registration so that works where the author doesn't care about copyright from the get-go become public domain works immediately. See the bit above about wanting to encourage the creation of works that otherwise wouldn't be created, but not to encourage the creation of works that would be created anyway.
Fifth, ignore the lifetime of the creator. Fixed-year terms are far more predictable for both people investing in the copyright, for the author himself, and for third parties who are waiting for the work to hit the public domain. We can safely ignore the creator's family, since virtually no works are profitable to begin with, much less for a long period of time. Works that could be used by the family to provide for themselves are about as rare as the author leaving behind a winning lottery ticket. If you are concerned for the author's family, then you should not support copyright as a way of helping them, since it almost never does. Instead support things that do help them, and better still, are helpful for everyone, and not just the handful of fantastically successful creators out there: life insurance, social welfare systems, reliable investments, IRAs, etc. Authors who use those, rather than relying on copyrights, are actually helping their families. Copyrights as a means of support for survivors is criminally irresponsible.
Sixth, studies indicate that for the tiny handful of works that have any economic value deriving from copyrights to begin with, that value is highly front-loaded. For example, a movie will earn 90% of its profits from its theatrical release within a few weeks, mostly during the first weekend. When it comes out on PPV, the same thing happens. Ditto for its release to rental stores and retail. Books, CDs, etc. are all pretty similar. A handful of works have lasting value, but they're so rare that it is foolish to create our policy around them, and granular renewal systems can help to weed the others out anyway. Other kinds of works (e.g. fine art) don't derive value from their copyrights. A poster of a Van Gogh is cheap. A perfect counterfei
Copyrights protect creative works once they are released into the public
No, they protect works upon creation. Further, there is some desirability in them doing so, or else we might have people stealing manuscripts in order to get around copyright. This has happened in the past, more or less, and should be dealt with.
I can put a circle-C (©) on a piece of original work and it is protected by law from that point forward.
Actually it's protected once you fix the work in a tangible medium of expression. But I would agree that strict notice formalities are a good thing and should be brought back.
Now, copyrights can be contested if prior art existed before you released your work and made your claim to copyright on it.
I think that you're confusing copyrights and patents. Copyrightable works have to be original, but they don't have to be novel (i.e. never done before). Patents have to be novel. It's entirely possible for Alice to create a copyrightable work, and for Bob to independently create and identical work and for Bob's work to also be copyrightable. So long as Bob doesn't copy from Alice, it's fine. That the works are identical doesn't matter.
free speech as they are not restricting original oration or free thinking
Free speech has nothing to do with originality. If I recite Hamlet, I use my right of free speech just as much as if I recite something I wrote myself. Both original and unoriginal speech are the same for first amendment purposes.
then an NDA is a good way to protect the rights of ownership
No, not really.
The GPL isn't a holy cow. While I would also prefer copyright reform (though far shorter terms than you suggest), I don't care about the effects of reform on the GPL specifically. Very few works in the entire realm of copyright use the GPL, and the big picture is what's important.
Actually, who defines what is a copy and where a copy is being made?
/. mostly seems to have an American userbase.
Courts that interpret the statutes written by legislatures is typically how this is done. In the US, for example, Congress has defined a copy as a material object, when they wrote the Copyright Act. The courts can interpret what that means, but it seems unlikely that they'd get very far with something so clear. I stick with US law, since that is what I know and
You say that downloading from another country is making a copy across a border. Is it really? A copy is being made in the source country, that copy is being transmitted across the border, then another copy is being made in the target (downloader's) country.
Well, no. Remember, the word 'copy' means a material object. Don't use it in the colloquial sense. That means that no copies are transmitted, because a transmission isn't material, it's intangible. And in any event, it doesn't matter. Since the law prohibits making any copies, the copies made by the downloader -- such as when he fixes the work into RAM, or a hard drive, etc. -- are copies made within the downloader's country, subject to that country's laws.
Like buy CD in source country, copy it there (that is legal in some countries), import the copy, then copy locally (again may be perfectly legal).
A CD certainly is a material object. So bringing it into a country would be importation, even though transmitting that data over the Internet would not have been. Of course, since there are limits on what can be imported (most people misread the US statute regarding this, btw; it's more strict that it might initially appear) that may or may not be unlawful. The making the copy locally may or may not be unlawful. It's still making a copy, and making copies is prima facie illegal. That it's being copied from a CD rather than a server does not itself matter much. The provenance of the source is more important (and it is entirely possible that making a copy of the server-originating copy would be legal, under the right circumstances, where making a copy of the CD would not be).
Several more copies are being made from buffer to buffer as the data is being routed between the server and downloader's machine. Is the owner of every proxy and every router along the way volating copyright laws? Or do exceptions exist somewhere for these cases?
For US law, anyway, the owners of the infrastructure are generally going to be protected thanks to both 17 USC 512 and also that they pretty certainly lack culpability (in that whatever their equipment does, it's doing so at the request of the downloader, making that party responsible, and they're sufficiently out of the loop that even secondary liability won't work on them).
What bothers me is how distribution is construed to include uploading. I found the EFF's analysis in its amicus brief in Elektra v. Barker to be persuasive: that the plain statutory language limits the distribution right to distribution of tangible, material objects.
/. posts, it's an appropriate word to use. Hopefully in the near future we'll be talking about the reproduction right and the performance and display rights.
I agree; that's what the statute says, and I'd be happy to see precedents to the contrary be depreciated as a result. But I suspect that courts will not be pleased with the idea of the public at large having the opportunity to use -- even if they almost certainly won't -- some of the statutory licenses relied upon by the radio and tv transmitting industries, along with the other limits in the 106(4)-(6) rights, so this might not succeed.
But I'm also distributing (from) a lawfully made copy, so wouldn't the first sale exception apply?
No. The reason that courts presently think that uploading is distribution is because they're not taking the uploading / downloading process into account, and are instead looking at the beginning and end of the matter.
In a classic case of distribution that doesn't fall within first sale (i.e. distribution of unlawfully made copies) what happens is this: 1) Alice obtains a lawfully made copy of a work. 2) Alice engages in reproduction to create some unlawfully made copies of the work. 3) Alice distributes (e.g. sells) the unlawfully made copies to Bob. 4) Alice is left with her lawfully made copy, and Bob is left with an unlawfully made copy.
In a computer based case, what happens is this: 1) Alice obtains a lawfully made copy of a work. 2) Alice puts it on a server, and Bob downloads it, which together constitutes Alice 'distributing' the work to Bob. 3) Bob writes the work to some storage medium (e.g. RAM, hard drive, etc.) and creates a new, unlawfully made copy of the work, which constitutes Bob engaging in reproduction. 4) Alice is left with her lawfully made copy, and Bob is left with an unlawfully made copy.
If you ignore the stuff in the middle, these are similar enough that a court that didn't pay very close attention would think that they're the same. And since no one has bothered to really make this argument before, courts have not had to pay attention, because the rule in court is that if a point is not disputed, it is just accepted, even if it is wrong. It is up to the parties to make arguments that advance their case, and not the place of the court to help either side. That the courts are annoyingly fussy about the technical workings of downloading and how they do constitute reproduction infringement as a matter of course is because someone did make that argument in the past, causing the courts to look at the issue. All together, it's a bit of a pisser.
But getting back to your question, even if the courts decide to stick with uploading as distribution rather than as performance or display, there's no chance that they'll say that uploading a copy in a process where another copy is ultimately produced falls under first sale. It's bad behavior, as far as they're concerned, and they won't use the available slack in their interpretation to help the people doing it.
In any event, until something happens with this, the precedents indicate that it's distribution, so for general-purpose
No, the Constitution does apply even when minors are involved. Age has nothing to do with it (other than the voting age). But the Constitution basically just establishes and limits the powers of the government. Since a child's parents are not the government, the child's Constitutional right to privacy has no effect on the parents. Government-run schools are subject to the Constitution, but have been allowed some leeway as they act in a custodial capacity while the child is at school. Nevertheless, I would like to see schools more circumscribed in what they can do.
As for children being able to buy videogames, no law prohibits them from being able to do so. Sellers may voluntarily decide to sell or not sell games to children, but that's it. It's just like going to the movies (where ratings are a private matter for the theater to abide by or not as they like).
I hear you say that if you copy a lot of CD's, copy songs, and sell the CD's you don't think that would be fair use.
Well, no, I think that if you copy the CDs with the plan of selling the CDs to recoup your expenses, then the copying would not be a fair use. But if you copy the CDs and then happen to sell them, but the two events are unrelated, then it is a fair use. As with Patry (who feels that the former example is also fair), I don't care about the sale of the CDs for its own sake, I just care about the circumstances surrounding the making of the copies. All that Patry and I differ on is that he only cares about events that occur up to the time of the making of the copies, whereas I think that a court could look at events that occur later, if they help to evidence what was really happening at the time of making the copies.
Do you think if you buy a lot of CD's, copy songs, and then have the CD's stolen or destroyed, would keeping them be fair game?
Absolutely. Again, Patry would find it a fair use. I differ from Patry in that I think that events that occur after the fair use can still help to show whether or not that use really was fair or not. Since the person who made the copies didn't intend for their originals to be lost, the copies were never meant to effectively be a substitute for buying lawfully made copies of the music. That they acted prudently doesn't mean that they acted wrongly. Again, remember that the fair use is the creation of the copies. Keeping the copies is always lawful, regardless of whether they were made lawfully or unlawfully. I really don't understand why you're so obsessed with it; it's a non-issue. What you ought to be interested in, and what I keep discussing, is the creation of the copies.
The sony license doesn't allow that.
The Sony license is pretty defunct, it seems, and no one else has anything like it, so who cares?
Industry executives (and I assume their lawyers) would argue that fair use doesn't cover that
Since keeping copies -- regardless of their provenance -- is never infringing, fair use never even enters the discussion. After all, something cannot be a fair use unless it can be infringing in the first place. It's as silly as talking about the 'crime' of not murdering people.
(since how is it different than selling them- and how can you prove you didn't sell them- and if not then you could sell them and claim they were stolen).
It's different in that if the copies were made as a substitute for buying a lawfully made copy of the music, then while this could be done by making a copy of the CD without ever buying it, one could achieve pretty similar results by buying the CD, making the copy, then reselling the CD in order to recover the cost of buying it. The end result is basically the same. But if you didn't sell or give away the CD, but instead lost it or had it stolen, etc. then the copies you made were not a substitute for buying it, they were a substitute for buying a replacement. I think that that is a very significant difference.
As for lying about the fate of the CDs, that's merely a factual matter for the jury to decide. If the jury believes your story, then the fair use analysis will proceed accepting as true that the CDs were lost. If the jury doesn't believe your story, then the fair use analysis will proceed accepting as true that the CDs were not lost, and were instead sold, or something. Don't worry about this sort of thing, it's not really relevant to the legal issues.
There is a long accepted and legal practice of recording songs off the radio
Long accepted, yes. Legal, don't be so sure. I remember when the RIAA ran ad campaigns condemning the practice, e.g. 'Home Taping is Killing Music.' (Which resulted in some bands, like the Dead Kennedys, selling their albums on tape with one blank side so as to help kill music) The AHRA was finally passed because 1) lawmakers and the public didn't really have a problem with it, and wanted it to
I do not believe that there is not a court in the land that would look at you repeatedly buying CD's, copying songs off them, and then SELLING THE CD's, as "fair". I believe if you try to do this in an organized fashion with other people, they would come down on you really hard.
/. -- in which I was basically just trying to correct the misunderstanding that personally-made copies have to be disposed of along with authorized copies -- shouldn't be construed as my advice, or blessing, or anything.
I agree. I don't think that it would be a fair use.
If you recorded the same songs off the radio, I do not think you would have any problems.
For the purposes of a fair use discussion, there's no difference whether you make copies from one medium or another. If making the copies is a substitute for buying lawfully made copies, that's what's key.
kept it quiet then you will probably "get away" with it
Sure, but most people who simply use P2P networks get away with it too. I thought that we were discussing what was legitimate.
However, lots of people pay big fines because of advice about similar "loopholes" in the tax system based on advice given to them. If you are actually an attorney and have experience in this area (which I can't know) then you go for it. But the courthouse is littered with the bodies of people who thought they could do stuff like this.
I fear that you might be misunderstanding me. I agree that it's a bad idea to try to set up organized personal piracy rings, and I don't plan to do so, nor would I encourage or advise anyone else to do so. A blue sky discussion on
You're conflating two different things.
Creating a new copy is reproduction. It is infringing, unless there is a applicable exception. Transferring possession or ownership of a copy is distribution. It is also infringing, unless there is a applicable exception. Possession is not infringing, ever.
Let's start with distribution, since it's simpler. It is illegal to distribute any copy, even original copies made by the copyright holder, unless there is an applicable exception. The most commonly used exception for distribution is first sale, which is codified at 17 USC 109. It basically says that distribution of copies which are lawfully made is not an infringement. For example, if you buy a CD at a store, and the CD was lawfully made by the copyright holder (or under his authority), then that is a lawfully made CD and you can turn around and give it away, sell it, etc. OTOH, if you buy a CD from someone on Canal Street in New York, and the CD was unlawfully made by a pirate, then that is an unlawfully made CD, and it is just as illegal for you to sell it or give it away as it was for the person on the street to sell it to you. Nevertheless, since possession is not infringing, it is lawful for you to own the CD and use it, so long as you don't distribute it further.
It is important to note that the first sale law allows redistribution of lawfully made copies, rather than authorizedly made copies. If a copy is lawfully made without the authorization of the copyright holder, then it is exactly as lawfully made as one that was made with authorization. There is no legal difference between the two copies. So if you can find a way to make a copy lawfully, even though the copyright holder wants you to not make that copy, then you can lawfully sell it.
Bearing this in mind, the question is whether there is a way to make new copies lawfully. There aren't many viable means, and the chief one for our purposes is fair use. As it happens, any otherwise infringing action (reproduction, distribution, public performance, etc.) which is fair, is non infringing; it's not limited to making more copies. However, each fair use is considered on its own merits. What is fair for Alice may not be fair for Bob because of their different circumstances.
In deciding whether something is a fair use, a court will look at four factors. The test isn't mathematical, it's looking for what's ultimately fair. The first factor is the purpose and character of the use, inclusive of whether the use is transformative (i.e. it creates a new work, as is the case in a parody, or a collage), and whether the use is commercial, or educational, etc. The second factor is the nature of the work, i.e. whether the work is basically factual (e.g. a history book, a copyrightable compilation of facts) or is creative (e.g. a fictional story, most music, etc.). The third factor is the amount and substantiality of the portion of the work used, i.e. whether you used all or only some of it, and if only some, did you use the important part. The fourth factor is the effect of the use on the value or potential market for the work.
In the case of making a copy of a CD for personal use, e.g. a rip of a CD to an iPod, the analysis would likely work out that the first three factors are against the use (since it's not transformative or educational, the work is creative, and it uses the entire work (the quality of the rip is irrelevant). But the fourth factor is with the use, since making a personal copy has no significant effect on the value of the work. This is subject to change, however, and the rise of iTMS is actually harmful to the argument that ripping CDs is fair use, since now there's an alternative to ripping.
If making the copy is a fair use, then the copy is lawfully made and will remain lawfully made forever. Whatever happens to the original CD, it'll never have any effect on the status of the copy you made. Not only is it legal to sell the original CD, but it's even legal to sell the copy you made (to someone else, naturally) -- th
Yes, the statute of limitations is 3 years for civil infringements, and 5 years for criminal infringements, per 17 USC 507.
Yes but in the my original post, the opinion of record industry executives is that this is true even without the license.
Perhaps, but that doesn't mean that they actually know the law all that well either. Who do you think hires copyright lawyers? Honestly, though, I find it doubtful.
You buy the CD, make a copy of a song and then sell the CD- you clearly lose the right to keep copies of the song.
No, it's not clear. In fact, Patry, who has advised Congress, writes an influential treatise, teaches, and is a big-name copyright lawyer, and who you were citing earlier, thinks that you don't lose any rights in such an example.
You buy the CD, make a copy of a song and then give away the CD- you clearly lose the right to keep copies of the song.
This is not distinguishable from the previous example. Sell, give, whatever, it's all the same for our purposes.
You buy the CD and it breaks- they argue you lose the rights- a reasonable person would say you had the rights to copies (FROM that CD- not from other sources) as long as you had possession of the broken CD.
No, possession of the broken copy wouldn't be relevant, and neither would the source, really (though the provider may face a stand-in-the-shoes problem).
I think that you are forgetting or misunderstanding that copyright law does not prohibit possession of anything. Rather it prohibits certain actions. Making a copy may be unlawful. Possessing an unlawfully-made copy is never unlawful, however. This is why it is wrong to speak of infringing copies, since there is no such thing; copies don't infringe, people do. The copies are just made in an infringing manner. This is why Patry takes the position that he does -- because what he sees as key is whether the copies were made lawfully at the time that they were made since nothing that comes later is even slightly relevant. My more conservative position is that a court might consider events that occurred after the time the copies were made in order to determine whether the copies were made lawfully at the time they were made. But even then, the issue is still whether the copies were made lawfully. If they were, then they'll be lawfully-made copies forever, and nothing can ever change that. And if they were made unlawfully, then they are unlawfully made copies forever, and nothing can change that either.
Hell- I hate them and even I can see their logic. I argue the license to the music should be stored externally so you can easily qualify for an inexpensive replacement of the song.
I'm sorry, but that's faulty logic, then. There is no such thing as a license to music that comes on CDs in stores at the consumer level. Apparently Sony was trying something (and it was blatant) and they seem to have stopped trying. You're basically arguing nonsensical stuff that is simply not related to what the law actually is.
What the law says, and what therefore applies in the absence of a license that you simply could not fail to miss if it existed (it usually doesn't, which is why you don't notice them) is that the act of making a copy of music might be illegal, but that if it is legal, then nothing that happens to the original will ever have any effect on the copy. The legal discussions you were looking at were people trying to figure out whether the making of the copy would be legal at all. Everyone knowledgable on this is in agreement that legal copies are legal forever and that there is simply no such law that you have to get rid of them along with the original.
There is a law that is like that in conjunction with software, but it doesn't apply to music, or to copies made under the aegis of fair use. It only applies to copies made pursuant to 17 USC 117. Ironically, almost no one ever uses 117, because EULAs, if they are effective, interfere with it.
It's true that I'm not a lawyer but come on, intent does matter.
Most of the time, that's correct. Intent does matter.
But there are exceptions where intent is irrelevant, and copyright happens to be one of them. Copyright infringement is a strict liability offense at the civil level (though it requires wilfulness at the criminal level, and willfulness is also useful for getting extra civil damages). The wikipedia entry for strict liability is here, if it'll help you out. You might want to compare it by looking at their pages on culpability and mens rea.
If I'm buying in good faith, that's bullshit.
That doesn't matter. Copyright is a strict liability statute. It is entirely possible and common to infringe on a copyright and have to pay significant damages, even when you had no idea that you were breaking the law, and could not have possibly known otherwise. It's pretty strict, really.
I find it more likely that AllOfMP3 has a valid license to distribute than anything the RIAA says.
Well, the question is where did they get that license from? A license to distribute to people in the US, and to sub-license those people to make copies in the US, can only come from the US copyright holder, or from someone authorized by the US copyright holder to sublicense the relevant rights. Essentially, that's the RIAA members, who are the very ones claiming that they didn't grant such a license. While many people have said that Allofmp3 uses a statutory license administered by ROMS, all this means is that Russian law has created a license that applies to all Russian copyrights. That's not an unusual thing, there are statutory licenses in the US. But such licenses are not of extraterritorial effect. US copyright law doesn't control what goes on within Russia, but Russian copyright law -- which is the origin of the license Allofmp3 claims to have -- cannot control what goes on in the US. So even if we accept that Allofmp3 is fully in compliance with Russian law, their actions directed into the US, and their US customers, are up shit creek.
Assuming that's actually true - which would require proving that AllOfMP3.com doesn't have a valid license to distribute music
Actually, that would require Allofmp3 proving that they do have an applicable license. The prima facie case for RIAA is simply that they have the relevant copyright interests and that infringing acts occurred. If Allofmp3 doesn't show up, then a default judgment will be entered against them. At a minimum, even if they only want to contest jurisdiction, they still need to show up in order to do that. Ignoring this would certainly not help them any, though it is debatable as to whether it would hurt them in a practical sense.
Of course, since you purchased the music in good faith, you have a strong defense.
No, that is not a defense at all, and probably won't even result in a reduction of damages for most people. Good faith is irrelevant, but not knowing that the work was copyrighted at all, could be helpful. Good luck with that argument, though, especially given how hard it is to prove.
Since this lawsuit is in a court that has no jurisdiction over AllOfMP3.com
No, US courts have jurisdiction over all entities that do business across our national border. Enforcing a judgment against Allofmp3 will be tricky, if they have no assets in the US, but jurisidction is easy.
Yes, but it's pretty exceptional. If you'll look at the EFF article you linked to, you'll see that the norm for music distributed on CD is that there is no licensure at all -- you simply own the CD, and have rights to do whatever you want to it, and the music therein, so long as you don't break the law in the process. You can see how far Sony had to go in order to try to deviate from this norm, and you'll note that even now, pretty much no one does it, and IIRC Sony has backed off for now. Still, I'd prefer to see the actual text of the thing, rather than rely on other peoples' readings of it.