what international treaties governing copyright apply to this situation
None, really. Copyright treaties are not self-executing; they're only agreements between countries to internally implement copyright laws that meet a certain minimum standard, and to offer the same treatment to foreigners (who are citizens of other treaty parties, etc.) as they do to their own people. Individuals can't use the treaties, or gain rights directly from the treaties. Take a look at 17 USC 104 for a good example of this sort of thing.
As for WIPO, they suck, and I'd just as soon see them eliminated. I don't think that copyright treaties are a good idea at all. Most of the copyright ills in the US are directly attributable to treaties circumventing the democratic process. Congress isn't all that involved at this point, because Geneva, the USTR, etc. set up treaty obligations and force Congress to pass the required laws as-is, lest we not be in compliance. As far as I'm concerned, the only international copyright laws should be 1) unilateral, universal national treatment (i.e. treat everyone the same as your own citizens, regardless of what they do), and 2) countries should informally work to avoid having laws be in such conflict that an author would be forced to choose between a copyright in country A and country B, since they're mutually exclusive. There should not be any minimum standards, however, even as far as to say that a country ought to be perfectly free to not have copyright laws at all, if that is what it feels is in its best interests.
Sort of. Those are both public performances, and the law prohibits them in most cases, so for that, you'd generally need a license. Getting one wouldn't really matter on the origin of the media, though. Then again, these are hardly consumer behaviors, so I don't think it conflicts much with my earlier post.
You'd get sued because Allofmp3 doesn't have the right to allow people in the US to download from them. Whatever rights they have under Russian law apply only to downloaders in Russia. Downloaders in the US are subject to US law, and our laws prohibit downloading from Allofmp3. Whether they charge you or not is irrelevant (other than that, if you're going to download music illegally, you might at least do so for free).
The US iTunes store is licensed by the US copyright holders for the music it sells -- which is why they don't have everything, and the US store is limited to buyers in the US. Their license also covers its customers, at least for downloads from the iTMS.
I think the argument here is that customers of allofmp3 believe they are purchasing from a legitimate store
No, that isn't a valid argument. US copyright law is strict liability; it doesn't matter whether a person thinks they acting legally or not. Strict liability laws are uncommon, but another good example would be statutory consent laws -- even if you thought the 15 year old was 18, and had no reason to think otherwise, and there was nothing more you could have done to verify her age, you're still on the hook.
This store does pay royalties to the russian version of the RIAA, however this Russian RIAA does not pass them on.
And that would be great if the downloader was in Russia, where Russian law applies, but you are not. ROMS has no legal authority in the US, and cannot protect someone who is located in the US, nor can they license such a person to do things in the US that are contrary to US law. If you're in the US, and you download, US copyright law is what applies to you, and it does not permit this sort of thing. Honestly, your argument is closely akin to saying that if marijuana is more or less legal in the Netherlands that it's okay for someone to have some here, if the Dutch say it's okay. It's a plainly stupid argument and it has zero chance of success.
I don't really care if you want to break the law, but I do care that you know what the law is, so that you can make an informed decision into whether or not you want to break it.
17 USC 106 prohibits reproduction and distribution, which are different kinds of infringing behavior. Since US copyright law isn't extraterritorial, they both only apply to conduct that occurs within the US. Also, since no copyright laws are extraterritorial, copyright laws are national. That is, Russian copyright laws only cover conduct within Russia, and are the only laws that apply in Russia; similarly, US laws only cover what happens in the US, but are the only laws that apply within the US.
17 USC 101 defines a copy as a material object in which a work is fixed. Although computer users have a habit of calling a sequence of information a copy (e.g. I have two copies of file foo on this hard drive), this is incorrect usage when discussing copyright (which would say that there is one copy -- the hard drive itself, so long as it contains file foo, no matter what else it contains, or how many times it contains it).
If you download information, no tangible object is sent to your computer; only information is sent. But the computer writes that information onto tangible objects, such as its RAM, cache, hard drives, etc. Because it does this, it makes at least one copy, possibly more, just as a normal part of its operation. If the computer and the objects are located within the US, then US law alone governs the creation of those copies; that some foreign law would allow it is irrelevant, because the copying is not occurring there. This is an example of reproduction, the first type of infringement listed in 17 USC 106.
Another distinct type of infringement, also listed in section 106, is distribution. While the canonical case of distribution is that of physically handing out copies (which, as you now know, are tangible copies), courts have also interpreted it to include providing files on a server; while only the information goes over the wire, the downloader creates and ends up with a new copy as if the uploader had simply distributed one in the first place. Disagree with this if you like, but the courts have been unanimous in this.
Importation is not listed as infringing behavior per se, in the Copyright Act. But the law does say that importation is an infringement of the distribution right. That is, importation is a subset of distribution. Specifically, the law talks about the importation of copies, rather than importation of anything. In fact, all of section 602 is very copy-centric, in that copies might be in luggage, they might be susceptable to being intercepted by customs, that things depend on the laws of the place where the copies being imported were made, etc. So a court is likely to interpret importation in this context as being the movement of tangible objects across the border into the US. Since copies are tangible objects and downloading does not involve tangible objects being moved from place to place, downloading cannot be importation. It is, OTOH, reproduction, which is a different kind of infringing behavior. That in some cases importation might be allowed is no longer relevant to this discussion, since we're not looking at importation to begin with.
While I'm not aware of any court cases where someone actually tried to use 602 as a defense to downloading, the statutes are pretty clear that such a defense would fail pretty readily. Plus of course, courts simply don't like people who are perceived as wrong-doers. While they will still faithfully apply the law, and protect the person they dislike if the law commands, they won't do that person any favors either when they have some discretion. Hoping that a court would side with a downloader if it had a chance to interpret laws either way is a hell of a long shot.
Hopping back to reproduction for a moment, you might think that pretty much any downloading can be infringing now, especially since it doesn't matter whether you knew or even could have known, that it was illegal at the time you did it. You'd be right, and in fact, there have been cases along these lines. My favorite to cite, since it is so clearly written, is
You might have wanted to read Patry's blog entry a little more carefully. Almost all of that entry is a quote of an article that someone else wrote. Patry's own comments don't appear until the very end. He says this:
Here's my reaction to the story: If one links on to the Executive Summary to the Copyright Office's DMCA report provided above, at pages 6-8 , you will find discussion of a proposal to amend the first sale doctrine in Section 109 to provide that where someone's lawfully made copy for 109 purposes was in digital form, that copy could be transmitted to a friend etc., so long as the "original" digital copy is deleted. The Office agreed that the current Section 109 is technologically neutral; that is it applies to lawfully made digital copies, but it declined to endorse the proposal both because of perceived differences in the way hard copy and digital copies degrade and because of doubts about verification of deletion.
But nothing in the report, or the law I am familiar with, says that if you own a lawfully made hard copy, like a CD, and you then make, for personal use, a digital copy, you can't sell the CD. Of course you can. You can sell your lawfully made CD even if the making of your digital copying is illegal: absent some contract provision, the two issues are totally separate.
The discussion in the comments (which Patry participates in) is worth reading. Eventually they get to the issue of concern, which is whether selling the original CDs after making copies which arguably fall under fair use, could retroactively change the fair use analysis that governed that instance of copying, and if so, under what circumstances. The plain reading of the law actually doesn't indicate that there is any legal problem with this at all; so long as it was fair use at the time of making the copies, those copies are lawfully made, and remain so forever. (And in fact, this permits one to not only sell the original CDs, but to even separately sell the copies, since first sale applies to all lawfully made copies, regardless of whether they were authorized or not) But the more conservative reading, which is also my take on it, is that courts aren't going to give their blessing to someone who has a calculated, deliberate practice of buying CDs, copying them, returning the CDs, and enjoying (or selling) the copies they made, and so will expand their fair use analysis to include later events that indicate the intent of the defendant at the time of the copying. This would stop the person who makes a habit out of making copies of CDs that are only briefly in their possession for that purpose, but would avoid harming the person who merely happens to do so, but didn't make their copies with that in mind.
That's ridiculous. If you have a legal right to a file in another country, and posession of it in this country is not otherwise illegal (e.g., it's not kiddie porn or something), there's no sane reason you can't copy it across the (virtual, and therefore nonexistant) border.
Well, the law says you are not allowed to copy it across the border, but you may be allowed to physically move a pre-existing copy across the border.
You might disagree with it, or find it silly, but that is actually what it says. I'd rather you disagree with it, knowing that, than to deny that it exists altogether. I'm a firm believer in the idea that we'll never get these laws fixed until people know what they really are, and what the policy goals for the laws are meant to be. Misinformation and erroneous 'common knowledge' don't help.
Let's use an analogy: imagine you're on vacation in Europe, and you buy a CD, burn it, put it on your iPod, and bring it back home with you. Is that illegal? Of course not, that would be absurd!
Actually, it is possible that bringing in the CD itself would be illegal; it would depend on its origins. But in any event, your example is faulty. Allofmp3 involves making copies across a border; you're talking about making a copy and then bringing it over the border. That's not the same thing. There is a world of difference between moving a tangible medium over the border (e.g. a CD, a hard drive, an iPod), and moving intangible information over the border (e.g. reading from a server in Russia and writing to a hard drive in America). The former is importation (a form of distribution), the latter is reproduction. Different exceptions apply to each.
You are even *legally* obligated to delete your extra copies of songs if your original is stolen or breaks.
No, that's not true.
People really need to wake up and get pissed off about these laws.
That's true, but first they need to know what the laws actually are. I mainly stick around on/. for that reason, in fact.
eally anything over 17 years is probably immoral/unethical since that is the term for a patent
Actually, patents went up to 20 years about 10 years ago, and they used to be 14 years well before that. Personally, though, I'd rather let each term be dictated by what is best for the public in that particular field. Copyrights on software could probably stand to be no more than 5 years, since it 'ages' rapidly. But a copyright on a movie could probably be somewhat longer. And neither has much to do with what the best patent term for a drug, or a new kind of battery, etc. might happen to be. Let's avoid easy solutions like an arbitrary 14 years, and look for what produces the best results for the public, hm?
OTOH, it could be illegal, but not be right, or wrong, or have any moral component whatsoever.
For example, is it immoral to jaywalk, or to put up a picket fence when the building code specifies wrought-iron, or to ignore Prohibition back when we had it?
Copyright is utilitarian. It's not founded in morality, and if it were, it's the pirates who have the moral high ground. After all, they're the ones who want to spread creative works to everyone who wants to enjoy them, they're the ones who use them, they're the ones who create works based upon them. Copyright holders want to stop this free flow of public, published, non-personal information that forms a central part of our culture, so that they can make money by doling it out to those that can afford it. There might be good practical reasons for letting them do that, but there are no moral reasons for it.
Well, yeah, but no one owns the information. Owning information is impossible, and if it were possible, we wouldn't need copyright, which tries to some extent to simulate what it would be like if we could.
If it is licensed, the licensee must have a right to obtain a copy from any source -- that's what "having a license" means.
No. One thousand times no, you are utterly and completely wrong. A license can easily say that that's not the case and be perfectly enforcable. It really wouldn't even be odd; I've seen similar terms before, and in many fields.
But that part of your post is the stupidest thing I've seen on/. in a while, so congratulations on that much at least.
If, on the other hand, the particular copy is bought then the owner has a right to use his property however he wishes, within the bounds of the law.
And in fact, that's what the reality of the situation is, and RIAA et al have never said otherwise. It's only people on/. and the like who assume that it is any other way. That being said, the law doesn't allow a hell of a lot, so you still end up getting shafted.
No, no one at the consumer level is ever licensed for the music, etc. in ordinary transactions. RIAA hasn't suggested otherwise; it's just people used to software that assume that licensing is common, when in fact, it is not, and it is a stupid idea, even for software. RIAA will agree that you can do anything you want with a CD, so long as it is legal to do. (In much the same way that Ford will agree that you can drive as fast as you want, so long as you don't break the speed limit) Your problem is simply that the law is quite restrictive, and it's really desirable to do things that happen to break it, and RIAA is a strong force in writing that law. For example, there is a good argument that ripping a CD to an iPod breaks the law, but it's the kind of thing that people want to be able to do and RIAA would prefer you couldn't.
What I believe the RIAA believes: Yes, you do own the CDs. You can do anything you like with them as long as it doesn't violate anything in the license for the music on the CDs. You can even sell CDs or give them away. Used CD stores are legal and common. Even Amazon sells used CDs. But the license to the music on a physical CD is (in the eyes of the RIAA) only valid if you actually have the physical CD. If you sell your CD, then it wants you to give the other person your back-up copies or else destroy your back-ups.
They don't actually believe that. For ordinary consumer CDs, there is no license. The same is true of other copyrighted media at the consumer level, e.g. books, movies, paintings, etc. Software is very anomalous, and in fact there is argument as to whether the attempts by software developers to use licenses are even effective, i.e. whether there really are such things as EULAs that are enforcible, regardless of whether a developer claims that there is. Certainly there is no reason to have EULAs for software -- or anything else -- as far as I have been able to tell, or as far as other lawyers in the field that I've discussed the issue with know.
What the RIAA thinks is that they sell CDs. The law says that if a CD was made lawfully, then the owner of the CD (not the copyright, but the tangible disc) can sell it. The law even allows rental (which is what video stores use) but, due to RIAA lobbying, not for CDs, actually. (Though CD rental is known in other countries, e.g. Japan). And since the law only prohibits certain specific things, and not just anything, you can do anything you like with the CD and the music therein, so long as you don't break the law.
One thing the law prohibits is making more copies of the CD. It is only legal to do that under certain conditions. One legal method is to use the AHRA, but the conditions that are required for that are somewhat out of the ordinary, and almost no one bothers. The other way is fair use. But anything can be a fair use or not, depending on the specific circumstances involved. It's impossible to say that all CD to computer ripping is fair or not as a blanket statement. It will depend on each individual instance of it, and what is fair for Alice to do might not be fair for Bob to do. It is generally believed -- though not strongly founded in the law -- that if a person owns a lawfully made copy, and makes another for their own use (e.g. they take a CD they bought at the store and rip it to an iPod via a computer) then that's probably fair. But since the totality of the circumstances must be considered in deciding whether it's fair or not, a lot will hinge on whether you merely are shifting around something you legitimately own a copy of, or whether you are basically trying to avoid having to pay for music (e.g. by buying a copy, ripping it, then turning around and selling the original, while keeping the ripped copy). That said, if you rip a copy and it is a fair use, then that copy is just as lawfully made as the one from the store. The issue is simply how long after making that rip will your actions still be considered as a part of the fair use analysis governing that rip?
Really though, the only people who think that licenses are common are people who think that software industry norms are common. In fact they're bizarre and probably a bad idea. I would suggest that you abandon the idea of CDs and the like being licensed, and push against the idea of consumer licenses for software as well. The industry doesn't really need them, consumers don't need them, and they just gum up the works.
No, they are both equally illegal. Downloading is a form of reproduction, and is illegal per 17 USC 106(1). Uploading is a form of distribution, and is illegal per 17 USC 106(3). The reason that RIAA, MPAA, et al tend to pursue more uploaders than downloaders is because it is easier to find uploaders, and because they think that as the number of uploaders decreases, downloaders who don't upload will simply lack the opportunity to break the law (since there'll be no one to download from), resulting in a two birds with one stone sort of thing. From a legal perspective, there's no significant difference. It's entirely tactical. Kind of like how, if you are injured by multiple parties, you concentrate on the one that has the most money.
That's useful proof. First, because downloading is not importation, it's reproduction, due to the way that the law defines what's illegal and the specific actions that occur in the process of downloading. (Specifically that making a copy is illegal, and a copy is defined as a tangible object, and downloading doesn't involve moving tangible objects like CDs, it involves using intangible information to create a new tangible copy within the US, where that's prohibited) Second, because even if it were importation, that would be illegal anyway. Yes, we all know that there is an oft-cited exception to the ban on importation, but that exception only covers one ban. There is a second one, and they both apply. The exception -- if it were importation at all -- isn't enough to protect anyone.
Actually my understanding is that all of these cases are basically running at a loss, or at best are breaking even (largely thanks to innovative, if error-prone, cost-cutting techniques). RIAA isn't trying to make money this way, they're really just interested in scaring people into only using legal channels of distribution. The amounts they ask for might seem high to you, but they're actually pretty low, and they've been known to go lower, in order to avoid juries that are likely to be sympathetic to the defendant. They're only high enough to be scary, not high enough to be profitable.
Besides, ASCAP, BMI, and SESAC are much more like the mafia than RIAA ever will be.
Actually, that's only the standard in criminal cases. In civil cases, the standard is the far, far lower 'balance of probabilities' standard. Simply put, it's 'whatever probably happened actually did happen' even if that probability is a mere 51%. Even if there's 49% of doubt, that's still not good enough in such a case for the defendant to win.
So honestly, if someone was accused of file sharing on the basis of them being assigned an IP at a particular time from which files were downloaded which contain copyrighted material, even if we only have RIAA's word for it, and the defendant had an open WAP, and a computer forensicist finds corresponding files on the defendant's hard drive, while we all may accept that there is a real possibility that the defendant didn't do it, does anyone think that he probably didn't do it? Because if he probably did it, despite even a very strong (but necessarily lesser) chance that he didn't, then you have to find him liable.
I find it difficult to believe that/. users would think that the defendant probably didn't do it, barring something else of particular significance.
I'm not saying prosecution would do that, but very substantial doubt is easily established by asking the parent's questions.
So?
These are civil cases. It doesn't matter whether there is doubt. The standard is a balance of the probabilities. That is, whatever the jury thinks most likely happened is treated as true. If there is a 51% chance that the defendant really did pirate the music, then it doesn't matter that there is a 49% chance that the plaintiff tampered with the evidence; 51 is greater than 49, and so the plaintiff wins.
All of the posts talking about open WAPs, or multiple people using a computer, or how easy it is to fake screenshots or alter drive contents, etc. are rather pointless. Sure, those might indicate that there is some reasonable doubt as to whether the defendant did it, but it's not enough to say that the defendant probably didn't do it. Unless you can reach that level of what probably or most likely happened, rather than mere what could have happened, you're still going to lose.
Titles of works are usually not trademarkable. A trademark has to indicate the origin of a good or service, it can't simply name the good or service itself. If a part of a title is used for a series of works, then it may be able to function as a trademark, but standing alone, it usually can't.
What if someone disposes of a CD... can I recover it (from the trash) and assume the rights, as the new owner, of the abandoned material ? Was there a license on the CD that prohibits the transfer ?
How do you know that the people allegedly downloading material from the defendants machines did not already own the material they were allegedly downloading?
That really doesn't matter.
How is providing access to a file considered distribution? (Sharing implies at least one other has already copied said file, access merely contains the possibility)
That's not a valid queston for this guy. He's an expert witness, and this question deals with the interpretation of the Copyright Act. Instead, the appropriate people to ask would be the lawyers and the judge.
Actually, one of the federal courts upheld the right to copy/decrypt digital media for personal use as a fair use exception, however, the same case also determined that creating & distributing the software required to do so was illegal.
Fair use doesn't mean 'use' per se, it means circumstances under which it is fair to make a copy, distribute a copy, perform a work, etc. Basically anything that is infringing is allowed, if it's fair to do so given the circumstances involved. So making the copy would be the fair use for our purposes. What the copy is intended for plays a factor in whether or not it's fair to make it at all, but we're really not concerned with it otherwise.
If that is anything but abolishing fair use, I don't see it.
It's not, but it is an attempt to make an end-run around it and render it irrelevant.
The difference being that the (U.S.) law specifically protects the copyright holder from others selling his/her works without permission.
No it doesn't. It says that no one can sell copies unless those copies were lawfully made, in which case, anyone can sell them (or give them away, or in most cases, rent them, etc.) without permission.
However, cracking the encryption in order to copy the disc for backup purposes (or to transfer to a different medium) is protected by law (even the DMCA has a fair use clause) and in this case there's nothing illegal with cracking the DRM to get at the content you paid for (or otherwise obtained legally).
No it isn't. Circumventing protection measures is nearly always unlawful, and fair use does not change that. This is because fair use only applies to making copies, not to circumvention. Circumvention is a distinct step for which fairness has no legal relevance. In order to not break the law, you'd have to make a copy without having circumvented the protection measure, i.e. without ever having decrypted the disc in the process, so that your backup copy was still encrypted. What the DMCA has to say about fair use is merely that it doesn't alter fair use, meaning that it doesn't reduce it (so that it didn't cover certain kinds of copyright infringements, which circumvention is not anyway), and that it doesn't enlarge it (so that it doesn't apply to circumvention, which was never covered under fair use to begin with). And there's everything illegal about circumventing DRM to get at the content you paid for.
Also, making a backup, or shifting media, is not necessarily fair use. It will depend on the circumstances in each case. For some people, under some circumstances, it will be fair (yet still illegal if they circumvent in the process), and yet other times, not fair. It depends, and there is no bright-line rule.
Slashdot Mirror
That's true. Of course, it's really easy to be a willful infringer, but quite hard to be an innocent infringer.
what international treaties governing copyright apply to this situation
None, really. Copyright treaties are not self-executing; they're only agreements between countries to internally implement copyright laws that meet a certain minimum standard, and to offer the same treatment to foreigners (who are citizens of other treaty parties, etc.) as they do to their own people. Individuals can't use the treaties, or gain rights directly from the treaties. Take a look at 17 USC 104 for a good example of this sort of thing.
As for WIPO, they suck, and I'd just as soon see them eliminated. I don't think that copyright treaties are a good idea at all. Most of the copyright ills in the US are directly attributable to treaties circumventing the democratic process. Congress isn't all that involved at this point, because Geneva, the USTR, etc. set up treaty obligations and force Congress to pass the required laws as-is, lest we not be in compliance. As far as I'm concerned, the only international copyright laws should be 1) unilateral, universal national treatment (i.e. treat everyone the same as your own citizens, regardless of what they do), and 2) countries should informally work to avoid having laws be in such conflict that an author would be forced to choose between a copyright in country A and country B, since they're mutually exclusive. There should not be any minimum standards, however, even as far as to say that a country ought to be perfectly free to not have copyright laws at all, if that is what it feels is in its best interests.
Sort of. Those are both public performances, and the law prohibits them in most cases, so for that, you'd generally need a license. Getting one wouldn't really matter on the origin of the media, though. Then again, these are hardly consumer behaviors, so I don't think it conflicts much with my earlier post.
You'd get sued because Allofmp3 doesn't have the right to allow people in the US to download from them. Whatever rights they have under Russian law apply only to downloaders in Russia. Downloaders in the US are subject to US law, and our laws prohibit downloading from Allofmp3. Whether they charge you or not is irrelevant (other than that, if you're going to download music illegally, you might at least do so for free).
so iTunes is illegal then?
The US iTunes store is licensed by the US copyright holders for the music it sells -- which is why they don't have everything, and the US store is limited to buyers in the US. Their license also covers its customers, at least for downloads from the iTMS.
I think the argument here is that customers of allofmp3 believe they are purchasing from a legitimate store
No, that isn't a valid argument. US copyright law is strict liability; it doesn't matter whether a person thinks they acting legally or not. Strict liability laws are uncommon, but another good example would be statutory consent laws -- even if you thought the 15 year old was 18, and had no reason to think otherwise, and there was nothing more you could have done to verify her age, you're still on the hook.
This store does pay royalties to the russian version of the RIAA, however this Russian RIAA does not pass them on.
And that would be great if the downloader was in Russia, where Russian law applies, but you are not. ROMS has no legal authority in the US, and cannot protect someone who is located in the US, nor can they license such a person to do things in the US that are contrary to US law. If you're in the US, and you download, US copyright law is what applies to you, and it does not permit this sort of thing. Honestly, your argument is closely akin to saying that if marijuana is more or less legal in the Netherlands that it's okay for someone to have some here, if the Dutch say it's okay. It's a plainly stupid argument and it has zero chance of success.
I don't really care if you want to break the law, but I do care that you know what the law is, so that you can make an informed decision into whether or not you want to break it.
17 USC 106 prohibits reproduction and distribution, which are different kinds of infringing behavior. Since US copyright law isn't extraterritorial, they both only apply to conduct that occurs within the US. Also, since no copyright laws are extraterritorial, copyright laws are national. That is, Russian copyright laws only cover conduct within Russia, and are the only laws that apply in Russia; similarly, US laws only cover what happens in the US, but are the only laws that apply within the US.
17 USC 101 defines a copy as a material object in which a work is fixed. Although computer users have a habit of calling a sequence of information a copy (e.g. I have two copies of file foo on this hard drive), this is incorrect usage when discussing copyright (which would say that there is one copy -- the hard drive itself, so long as it contains file foo, no matter what else it contains, or how many times it contains it).
If you download information, no tangible object is sent to your computer; only information is sent. But the computer writes that information onto tangible objects, such as its RAM, cache, hard drives, etc. Because it does this, it makes at least one copy, possibly more, just as a normal part of its operation. If the computer and the objects are located within the US, then US law alone governs the creation of those copies; that some foreign law would allow it is irrelevant, because the copying is not occurring there. This is an example of reproduction, the first type of infringement listed in 17 USC 106.
Another distinct type of infringement, also listed in section 106, is distribution. While the canonical case of distribution is that of physically handing out copies (which, as you now know, are tangible copies), courts have also interpreted it to include providing files on a server; while only the information goes over the wire, the downloader creates and ends up with a new copy as if the uploader had simply distributed one in the first place. Disagree with this if you like, but the courts have been unanimous in this.
Importation is not listed as infringing behavior per se, in the Copyright Act. But the law does say that importation is an infringement of the distribution right. That is, importation is a subset of distribution. Specifically, the law talks about the importation of copies, rather than importation of anything. In fact, all of section 602 is very copy-centric, in that copies might be in luggage, they might be susceptable to being intercepted by customs, that things depend on the laws of the place where the copies being imported were made, etc. So a court is likely to interpret importation in this context as being the movement of tangible objects across the border into the US. Since copies are tangible objects and downloading does not involve tangible objects being moved from place to place, downloading cannot be importation. It is, OTOH, reproduction, which is a different kind of infringing behavior. That in some cases importation might be allowed is no longer relevant to this discussion, since we're not looking at importation to begin with.
While I'm not aware of any court cases where someone actually tried to use 602 as a defense to downloading, the statutes are pretty clear that such a defense would fail pretty readily. Plus of course, courts simply don't like people who are perceived as wrong-doers. While they will still faithfully apply the law, and protect the person they dislike if the law commands, they won't do that person any favors either when they have some discretion. Hoping that a court would side with a downloader if it had a chance to interpret laws either way is a hell of a long shot.
Hopping back to reproduction for a moment, you might think that pretty much any downloading can be infringing now, especially since it doesn't matter whether you knew or even could have known, that it was illegal at the time you did it. You'd be right, and in fact, there have been cases along these lines. My favorite to cite, since it is so clearly written, is
You might have wanted to read Patry's blog entry a little more carefully. Almost all of that entry is a quote of an article that someone else wrote. Patry's own comments don't appear until the very end. He says this:
Here's my reaction to the story: If one links on to the Executive Summary to the Copyright Office's DMCA report provided above, at pages 6-8 , you will find discussion of a proposal to amend the first sale doctrine in Section 109 to provide that where someone's lawfully made copy for 109 purposes was in digital form, that copy could be transmitted to a friend etc., so long as the "original" digital copy is deleted. The Office agreed that the current Section 109 is technologically neutral; that is it applies to lawfully made digital copies, but it declined to endorse the proposal both because of perceived differences in the way hard copy and digital copies degrade and because of doubts about verification of deletion.
But nothing in the report, or the law I am familiar with, says that if you own a lawfully made hard copy, like a CD, and you then make, for personal use, a digital copy, you can't sell the CD. Of course you can. You can sell your lawfully made CD even if the making of your digital copying is illegal: absent some contract provision, the two issues are totally separate.
The discussion in the comments (which Patry participates in) is worth reading. Eventually they get to the issue of concern, which is whether selling the original CDs after making copies which arguably fall under fair use, could retroactively change the fair use analysis that governed that instance of copying, and if so, under what circumstances. The plain reading of the law actually doesn't indicate that there is any legal problem with this at all; so long as it was fair use at the time of making the copies, those copies are lawfully made, and remain so forever. (And in fact, this permits one to not only sell the original CDs, but to even separately sell the copies, since first sale applies to all lawfully made copies, regardless of whether they were authorized or not) But the more conservative reading, which is also my take on it, is that courts aren't going to give their blessing to someone who has a calculated, deliberate practice of buying CDs, copying them, returning the CDs, and enjoying (or selling) the copies they made, and so will expand their fair use analysis to include later events that indicate the intent of the defendant at the time of the copying. This would stop the person who makes a habit out of making copies of CDs that are only briefly in their possession for that purpose, but would avoid harming the person who merely happens to do so, but didn't make their copies with that in mind.
That's ridiculous. If you have a legal right to a file in another country, and posession of it in this country is not otherwise illegal (e.g., it's not kiddie porn or something), there's no sane reason you can't copy it across the (virtual, and therefore nonexistant) border.
Well, the law says you are not allowed to copy it across the border, but you may be allowed to physically move a pre-existing copy across the border.
You might disagree with it, or find it silly, but that is actually what it says. I'd rather you disagree with it, knowing that, than to deny that it exists altogether. I'm a firm believer in the idea that we'll never get these laws fixed until people know what they really are, and what the policy goals for the laws are meant to be. Misinformation and erroneous 'common knowledge' don't help.
Let's use an analogy: imagine you're on vacation in Europe, and you buy a CD, burn it, put it on your iPod, and bring it back home with you. Is that illegal? Of course not, that would be absurd!
Actually, it is possible that bringing in the CD itself would be illegal; it would depend on its origins. But in any event, your example is faulty. Allofmp3 involves making copies across a border; you're talking about making a copy and then bringing it over the border. That's not the same thing. There is a world of difference between moving a tangible medium over the border (e.g. a CD, a hard drive, an iPod), and moving intangible information over the border (e.g. reading from a server in Russia and writing to a hard drive in America). The former is importation (a form of distribution), the latter is reproduction. Different exceptions apply to each.
You are even *legally* obligated to delete your extra copies of songs if your original is stolen or breaks.
/. for that reason, in fact.
No, that's not true.
People really need to wake up and get pissed off about these laws.
That's true, but first they need to know what the laws actually are. I mainly stick around on
eally anything over 17 years is probably immoral/unethical since that is the term for a patent
Actually, patents went up to 20 years about 10 years ago, and they used to be 14 years well before that. Personally, though, I'd rather let each term be dictated by what is best for the public in that particular field. Copyrights on software could probably stand to be no more than 5 years, since it 'ages' rapidly. But a copyright on a movie could probably be somewhat longer. And neither has much to do with what the best patent term for a drug, or a new kind of battery, etc. might happen to be. Let's avoid easy solutions like an arbitrary 14 years, and look for what produces the best results for the public, hm?
OTOH, it could be illegal, but not be right, or wrong, or have any moral component whatsoever.
For example, is it immoral to jaywalk, or to put up a picket fence when the building code specifies wrought-iron, or to ignore Prohibition back when we had it?
Copyright is utilitarian. It's not founded in morality, and if it were, it's the pirates who have the moral high ground. After all, they're the ones who want to spread creative works to everyone who wants to enjoy them, they're the ones who use them, they're the ones who create works based upon them. Copyright holders want to stop this free flow of public, published, non-personal information that forms a central part of our culture, so that they can make money by doling it out to those that can afford it. There might be good practical reasons for letting them do that, but there are no moral reasons for it.
Well, yeah, but no one owns the information. Owning information is impossible, and if it were possible, we wouldn't need copyright, which tries to some extent to simulate what it would be like if we could.
If it is licensed, the licensee must have a right to obtain a copy from any source -- that's what "having a license" means.
/. in a while, so congratulations on that much at least.
/. and the like who assume that it is any other way. That being said, the law doesn't allow a hell of a lot, so you still end up getting shafted.
No. One thousand times no, you are utterly and completely wrong. A license can easily say that that's not the case and be perfectly enforcable. It really wouldn't even be odd; I've seen similar terms before, and in many fields.
But that part of your post is the stupidest thing I've seen on
If, on the other hand, the particular copy is bought then the owner has a right to use his property however he wishes, within the bounds of the law.
And in fact, that's what the reality of the situation is, and RIAA et al have never said otherwise. It's only people on
No, no one at the consumer level is ever licensed for the music, etc. in ordinary transactions. RIAA hasn't suggested otherwise; it's just people used to software that assume that licensing is common, when in fact, it is not, and it is a stupid idea, even for software. RIAA will agree that you can do anything you want with a CD, so long as it is legal to do. (In much the same way that Ford will agree that you can drive as fast as you want, so long as you don't break the speed limit) Your problem is simply that the law is quite restrictive, and it's really desirable to do things that happen to break it, and RIAA is a strong force in writing that law. For example, there is a good argument that ripping a CD to an iPod breaks the law, but it's the kind of thing that people want to be able to do and RIAA would prefer you couldn't.
What I believe the RIAA believes:
Yes, you do own the CDs. You can do anything you like with them as long as it doesn't violate anything in the license for the music on the CDs. You can even sell CDs or give them away. Used CD stores are legal and common. Even Amazon sells used CDs.
But the license to the music on a physical CD is (in the eyes of the RIAA) only valid if you actually have the physical CD. If you sell your CD, then it wants you to give the other person your back-up copies or else destroy your back-ups.
They don't actually believe that. For ordinary consumer CDs, there is no license. The same is true of other copyrighted media at the consumer level, e.g. books, movies, paintings, etc. Software is very anomalous, and in fact there is argument as to whether the attempts by software developers to use licenses are even effective, i.e. whether there really are such things as EULAs that are enforcible, regardless of whether a developer claims that there is. Certainly there is no reason to have EULAs for software -- or anything else -- as far as I have been able to tell, or as far as other lawyers in the field that I've discussed the issue with know.
What the RIAA thinks is that they sell CDs. The law says that if a CD was made lawfully, then the owner of the CD (not the copyright, but the tangible disc) can sell it. The law even allows rental (which is what video stores use) but, due to RIAA lobbying, not for CDs, actually. (Though CD rental is known in other countries, e.g. Japan). And since the law only prohibits certain specific things, and not just anything, you can do anything you like with the CD and the music therein, so long as you don't break the law.
One thing the law prohibits is making more copies of the CD. It is only legal to do that under certain conditions. One legal method is to use the AHRA, but the conditions that are required for that are somewhat out of the ordinary, and almost no one bothers. The other way is fair use. But anything can be a fair use or not, depending on the specific circumstances involved. It's impossible to say that all CD to computer ripping is fair or not as a blanket statement. It will depend on each individual instance of it, and what is fair for Alice to do might not be fair for Bob to do. It is generally believed -- though not strongly founded in the law -- that if a person owns a lawfully made copy, and makes another for their own use (e.g. they take a CD they bought at the store and rip it to an iPod via a computer) then that's probably fair. But since the totality of the circumstances must be considered in deciding whether it's fair or not, a lot will hinge on whether you merely are shifting around something you legitimately own a copy of, or whether you are basically trying to avoid having to pay for music (e.g. by buying a copy, ripping it, then turning around and selling the original, while keeping the ripped copy). That said, if you rip a copy and it is a fair use, then that copy is just as lawfully made as the one from the store. The issue is simply how long after making that rip will your actions still be considered as a part of the fair use analysis governing that rip?
Really though, the only people who think that licenses are common are people who think that software industry norms are common. In fact they're bizarre and probably a bad idea. I would suggest that you abandon the idea of CDs and the like being licensed, and push against the idea of consumer licenses for software as well. The industry doesn't really need them, consumers don't need them, and they just gum up the works.
No, they are both equally illegal. Downloading is a form of reproduction, and is illegal per 17 USC 106(1). Uploading is a form of distribution, and is illegal per 17 USC 106(3). The reason that RIAA, MPAA, et al tend to pursue more uploaders than downloaders is because it is easier to find uploaders, and because they think that as the number of uploaders decreases, downloaders who don't upload will simply lack the opportunity to break the law (since there'll be no one to download from), resulting in a two birds with one stone sort of thing. From a legal perspective, there's no significant difference. It's entirely tactical. Kind of like how, if you are injured by multiple parties, you concentrate on the one that has the most money.
That's useful proof. First, because downloading is not importation, it's reproduction, due to the way that the law defines what's illegal and the specific actions that occur in the process of downloading. (Specifically that making a copy is illegal, and a copy is defined as a tangible object, and downloading doesn't involve moving tangible objects like CDs, it involves using intangible information to create a new tangible copy within the US, where that's prohibited) Second, because even if it were importation, that would be illegal anyway. Yes, we all know that there is an oft-cited exception to the ban on importation, but that exception only covers one ban. There is a second one, and they both apply. The exception -- if it were importation at all -- isn't enough to protect anyone.
They make lots of money settling these cases
Actually my understanding is that all of these cases are basically running at a loss, or at best are breaking even (largely thanks to innovative, if error-prone, cost-cutting techniques). RIAA isn't trying to make money this way, they're really just interested in scaring people into only using legal channels of distribution. The amounts they ask for might seem high to you, but they're actually pretty low, and they've been known to go lower, in order to avoid juries that are likely to be sympathetic to the defendant. They're only high enough to be scary, not high enough to be profitable.
Besides, ASCAP, BMI, and SESAC are much more like the mafia than RIAA ever will be.
Actually, that's only the standard in criminal cases. In civil cases, the standard is the far, far lower 'balance of probabilities' standard. Simply put, it's 'whatever probably happened actually did happen' even if that probability is a mere 51%. Even if there's 49% of doubt, that's still not good enough in such a case for the defendant to win.
/. users would think that the defendant probably didn't do it, barring something else of particular significance.
So honestly, if someone was accused of file sharing on the basis of them being assigned an IP at a particular time from which files were downloaded which contain copyrighted material, even if we only have RIAA's word for it, and the defendant had an open WAP, and a computer forensicist finds corresponding files on the defendant's hard drive, while we all may accept that there is a real possibility that the defendant didn't do it, does anyone think that he probably didn't do it? Because if he probably did it, despite even a very strong (but necessarily lesser) chance that he didn't, then you have to find him liable.
I find it difficult to believe that
I'm not saying prosecution would do that, but very substantial doubt is easily established by asking the parent's questions.
So?
These are civil cases. It doesn't matter whether there is doubt. The standard is a balance of the probabilities. That is, whatever the jury thinks most likely happened is treated as true. If there is a 51% chance that the defendant really did pirate the music, then it doesn't matter that there is a 49% chance that the plaintiff tampered with the evidence; 51 is greater than 49, and so the plaintiff wins.
All of the posts talking about open WAPs, or multiple people using a computer, or how easy it is to fake screenshots or alter drive contents, etc. are rather pointless. Sure, those might indicate that there is some reasonable doubt as to whether the defendant did it, but it's not enough to say that the defendant probably didn't do it. Unless you can reach that level of what probably or most likely happened, rather than mere what could have happened, you're still going to lose.
Titles of works are usually not trademarkable. A trademark has to indicate the origin of a good or service, it can't simply name the good or service itself. If a part of a title is used for a series of works, then it may be able to function as a trademark, but standing alone, it usually can't.
What if someone disposes of a CD ... can I recover it (from the trash) and assume the rights, as the new owner, of the abandoned material ? Was there a license on the CD that prohibits the transfer ?
In 99.44% of cases, yes and no, respectively.
How do you know that the people allegedly downloading material from the defendants machines did not already own the material they were allegedly downloading?
That really doesn't matter.
How is providing access to a file considered distribution? (Sharing implies at least one other has already copied said file, access merely contains the possibility)
That's not a valid queston for this guy. He's an expert witness, and this question deals with the interpretation of the Copyright Act. Instead, the appropriate people to ask would be the lawyers and the judge.
Actually, one of the federal courts upheld the right to copy/decrypt digital media for personal use as a fair use exception, however, the same case also determined that creating & distributing the software required to do so was illegal.
Got a cite?
between a copy and fair USE
Fair use doesn't mean 'use' per se, it means circumstances under which it is fair to make a copy, distribute a copy, perform a work, etc. Basically anything that is infringing is allowed, if it's fair to do so given the circumstances involved. So making the copy would be the fair use for our purposes. What the copy is intended for plays a factor in whether or not it's fair to make it at all, but we're really not concerned with it otherwise.
If that is anything but abolishing fair use, I don't see it.
It's not, but it is an attempt to make an end-run around it and render it irrelevant.
The difference being that the (U.S.) law specifically protects the copyright holder from others selling his/her works without permission.
No it doesn't. It says that no one can sell copies unless those copies were lawfully made, in which case, anyone can sell them (or give them away, or in most cases, rent them, etc.) without permission.
However, cracking the encryption in order to copy the disc for backup purposes (or to transfer to a different medium) is protected by law (even the DMCA has a fair use clause) and in this case there's nothing illegal with cracking the DRM to get at the content you paid for (or otherwise obtained legally).
No it isn't. Circumventing protection measures is nearly always unlawful, and fair use does not change that. This is because fair use only applies to making copies, not to circumvention. Circumvention is a distinct step for which fairness has no legal relevance. In order to not break the law, you'd have to make a copy without having circumvented the protection measure, i.e. without ever having decrypted the disc in the process, so that your backup copy was still encrypted. What the DMCA has to say about fair use is merely that it doesn't alter fair use, meaning that it doesn't reduce it (so that it didn't cover certain kinds of copyright infringements, which circumvention is not anyway), and that it doesn't enlarge it (so that it doesn't apply to circumvention, which was never covered under fair use to begin with). And there's everything illegal about circumventing DRM to get at the content you paid for.
Also, making a backup, or shifting media, is not necessarily fair use. It will depend on the circumstances in each case. For some people, under some circumstances, it will be fair (yet still illegal if they circumvent in the process), and yet other times, not fair. It depends, and there is no bright-line rule.