The thing is that mp3's can be made by anybody (with the proper software) and they can be named various variations of names, and can be made with various levels of sound quality, bitrate, etc.. A direct copy of an original digital file would of course be different.
No, a lossless rip would be different, but most people don't do them. More commonly, people rip CDs, even their own CDs, to mp3s.
I personaly don't see how recording a mixed tape and giving it to a freind is any different than converting CD's to mp3's and sharing it with a freind.
One material difference is that one is on a cassette tape, and one is not. That matters a bit. But other than that, I'd say that there's no particular difference, and that unless you can make a good fair use argument (which is unlikely), it would be illegal to do either.
The fact that is is easier on the internet is I suppose the difference. If you made tapes and tried selling them, or you made CD's with mp3's and tried selling them then I could see a problem.
No, the Internet is not really a factor, unless the facts are different than what you started out with above. And yes, if you were making money at it, things would be even worse for you.
I also see no problems with someone regularly scrubbing their hard drive of logs and files if they are paranoid, which is their right, just as it is their right to erase their browser history and cookies etc... sure it's suspicious, but prove wrong doing externaly then.
A good solution is to have a data retention policy by which you destroy all records that are of a certain age automatically. That way it's not really suspicious, it's routine. Most businesses that bother to think about possible litigation will have such policies. Of course, if a court tells you to stop because something's come up, then you have to stop doing that. Simply not keeping logs and such is also viable.
Unless the computer is seized unexpectedly, I would think a removable second drive could be used to contain the files, and since the operating system is on the main drive how would they know that watever removable drive was submited with the main drive was or wasn't being used all along ?
That's why when you're doing discovery you just request everything you can get that you might want; the other side becomes obligated to hand it over. It's generally the police that seize stuff, but they'd just take everything. Your idea isn't all that original, you see, nor is it very useful.
First, they don't have to review any file unless they want to, because the plaintiff gets to choose what it bases its case on. If they want to ignore a particular file then it only helps the defendant for them to do so. So your #2 is rather stupid. (Though from my own experiences, I would say that disguising a file adequately could work pretty easily unless the reviewer had some reason to look further, such as if disguised files became a commonly used tactic by infringers)
Second, for files they are initially interested in, I assure you, they really will review them in their entirety. I've had to do this sort of thing myself at times, and let me tell you, it is very boring. But it does brighten the day of the reviewers to come across evidence of illicit workplace romances, affairs, arguments, illegal activities (whether related to the case or not), etc. Regular ol' porn, not so interesting, actually. It's more fun to hear about things than to see them graphically. So don't worry about your #1.
Third, your #3 is again, rather stupid. If a file is found that the plaintiff is going to go to court with, the mere presence of the file is enough to go to the jury with. The defendant can argue that the file was put there by someone else. It is up to the jury to decide who they believe; that is their job. It's no different than if one side had a witness that said he saw the defendant do it, and another witness with the exact opposite story.
The way that this sort of thing tends to work is that a basic search is run, and then humans go through all of the positive matches, trimming that down to just what is relevant in the specific case. A couple of rounds of human level review are normal, since you start off erring on the side of inclusiveness, but you do want to get rid of non-relevant matches in each round, and you get more precise as to what matches and what doesn't as you go through. Digital signatures will only be used in the first round, most likely. After that, human beings will actually listen to the music, identify the songs, etc.
Since one of the prima facie elements for the suit is that the plaintiff can show that he is the copyright holder, public domain works will ultimately not be counted.
Does it differentiate any of the legal backup rips of my CDs from "their music" and flag which is not or which is "pirate"?
No, nor should it. If you rip a CD, you are prima facie infringing and it is perfectly fine for the copyright holder to sue you for it, whether you own the CD or not. In order to win, you, the defendant, would have to make a successful defense of fair use. That is, it is your obligation to prove that each of those rips was fair under the circumstances it was made. You're likely to succeed, so the plaintiff will probably make it a point, during discovery, to ignore copies you ripped from CDs you owned at the time of the rip. But there's no such thing as an automatic right to rip your CDs to a computer hard drive.
And look at the explosion of commerce and innovation that happened once we had a good framework in place. There are a number of reasons the Industrial Revolution happened, but advances in technology (and law) and banking are huge contributors.
Post hoc, ergo propter hoc? That's a fallacy, not an argument.
Dairy cows should be treated gently, because they have feelings, too.
I disagree. I am not advocating cruelty as an end unto itself, but I have no problem with necessary harm. If milk yields can be safely improved best by kicking the cows, then that's what should happen. If they can be safely improved best by massaging them, then I'd be in favor of that. I certainly wouldn't kick a cow for the hell of it; that's a waste of effort that could be used more productively and might imperil yields.
This is all more clear if we move from dairy cows to, say, bees (which don't at all like people taking their honey), or animals raised for slaughter (which would prefer not to be killed and eaten).
By the same token, authors should be treated fairly. In fact, since they can talk and vote unlike cows, I imagine it would be rather hard to treat them harshly for the good of the public, which they happen to be a part of.
Yes, but authors-as-members-of-the-public are not appreciably different from other members of the public. They like getting works for free, they like the freedom to use others' works, etc. They're only different when they want something at the expense of all members of the public who aren't authors. And then, the appropriate question is why they should get something at everyone else's expense unless everyone else benefits from this more than they would if they said no.
I don't think you can ignore the authors when making copyright laws
Why not? I simply mean to not favor them in any way. If giving them something is so beneficial for the public that it makes up for the cost of giving them the thing, and ultimately yields a net public benefit, then it's in our interests to do so. But I'm not doing it merely because it benefits them or they ask for it.
And if giving them something yields a net public detriment, then it is in our interests to deny them. Again, we're not doing it merely because it benefits them or they ask for it.
I'm happy to give artists whatever they want, so long as I am better off for it. But copyright is not a charity, and artists must never get any copyright just to be nice or fair. Besides, no artist asks for a copyright to be fair. A copyright is control over what other people can do, and is almost invariably sought because the artist wants to make money. Given that artists are acting out of their own self-interest, I see no reason for the public at large not to do the same.
Copyright is kind of like a contract between authors and the rest of the public, and like any contract, it should be fair to both sides.
Not only is copyright not like a contract, but contracts are never required to be fair to both sides, which is good since they are virtually never fair.
We are not dealing with commodity goods, we do not have equivalent goods. Each movie or song is a unique piece of art, one is not a replacement for another, the market is not deprived.
You're wrong, but that's because you're looking at the wrong aspect of the market. Copyright is a monopoly over specific works. Each copyright is a monopoly as to that specific work. For example, Disney has a monopoly over their movie adaptation of Aladdin. No one else can make copies of it. On the other hand, they don't have a copyright on the underlying story of Aladdin, people can make copies of the underlying story (just as Disney has done), and the market benefits from competition between authors for the best retelling of the story. A monopoly on the underlying story would deprive the public of many versions of Aladdin, just as a monopoly on any one version deprives the public of the many versions that could spring from that. Nor is this limited to derivatives; since Disney has a monopoly on their version of Aladdin, the market cannot deliver identical copies of their version at a lower cost. This is a classic example of a monopolist harming consumers. Without their monopoly, the movie would likely be available from many sources, and the cost would be far lower. Some might even make it available for free.
You confuse ownership with the ability to enforce authorized distribution. The fact that enforcement is not 100% does not change ownership.
Again, you're misunderstanding me, and that's the source of the confusion. I never mentioned enforcement. I said that if you lack the right of control, you don't own anything anyway. After all, a copyright is simply the right to prevent people from doing certain things with regard to a certain work. If you lack that right, you lack a copyright. How easily you can exercise that right isn't something I was talking about.
I stated in my post that people would take source, modify it, and release binaries but not the modified source.
Yes. And I am suggesting that a good reform to copyright would be one in which if you did this, you couldn't get a copyright, and would thus be risking that other people could copy your binaries freely, which you probably would not like. This provides an incentive to pursue a copyright, which would require that you make your source publicly readable so that, when your copyright expired (remember that you were avoiding the GPL by waiting for a hypothetical short copyright term to expire), your modified source is readily available. And since copyright doesn't protect ideas, any improvements in the software's functionality could be used during the copyright term, provided that it was implemented without copying the source as you had written it.
I'm perfectly aware that this might have some impact on the GPL, since one could wait for the copyright to expire on GPL'ed software so long as you were willing to be a bit out of date. But on the whole, most software is not GPL'ed, the source is permanently closed, often lost, and the software remains copyrighted far too long. I think that my ideas of mandating deposit of commented source and shortening the term to a few years would provide a significant benefit for the public, even accounting for whatever detriment might occur with regard to the GPL. That is to say, I'm more concerned as to the big picture.
I have no right whatsoever to complain if someone else simply copies my work and tries to sell it themselves?
Basically, yes. Whatever useful right to complain that you've got is one that is given to you by the public, and is meant to serve the public interest. No one at all cares about you, or what you want, other than that it is a useful way to manipulate you. I.e. you want money, and we want public domain works, so we give you a limited, temporary monopoly that you gamble will make you money, and you create the work that we will ultimately get whether you actually make money or not.
The lack of any laws wouldn't be all bad. There were no copyright laws prior to 1710 in England, and in most of the world not until well into the 19th and 20th centuries, and often copyright only covered some kinds of art and not other kinds. And a lot of works were created by authors who often could manage to be fairly successful and comfortable, entirely without copyright.
But in any event, this is a red herring. There is a much stronger call for reform of the law than there is to abolish it altogether. Getting rid of criminal penalties, shortening the length of copyright (if the game makes you any money, it'll do so quite rapidly; you don't need many decades of copyright -- especially since you only need to make enough to incentivize you, so far as the public is concerned), shortening the scope of copyright (e.g. mandating that the source be revealed and deposited in the Library of Congress if you want a copyright, though you're free to rely on trade secret laws if you forgo copyright; or mandating that you can't use DRM if you want a copyright, though you're free to use it if you forgo copyright and think you can withstand a government supported DRM-cracking agenda meant to get those public domain works into all the hands that want them).
Balance is irrelevant. The best copyright law is the one that best serves the public. No one cares how well authors do under it, except insofar as that affects whether the public is best served. Kind of like how a dairy farmer doesn't care if his dairy cows are happy, except insofar as it affects the milk yield. If treating them gently will make him more money, he'll do it. If treating them harshly will make him more money, he'll do that instead. Copyright's quite similar, with the public as the farmer, the authors as the cows, and their creative works as the milk.
Actually, that was _this_ law. In the US, criminal penalties for infringement generally have been around since 1897. Unless you're a highlander or something, that's pretty dry paint.
A copyright monopoly is little different than, say, a cable tv monopoly. Artificial monopolies are inherently bad, depriving the market of the beneficial effects of competition for what is essentially a commodity good. So we shouldn't grant them for the hell of it, or because a monopolist is a nice person. We -- the public -- do it when it benefits us to do so, even taking into account all of the downsides to it.
Whether something is a 'luxury' or not is irrelevant. (And btw, culture is not a luxury) Likewise, the issue is whether someone gets to control anything; if they don't, then they aren't any kind of owner, making your second point circular.
While few are suggesting we abolish copyright (as opposed to the many who suggest we reduce it in length and scope), yes, the GPL would go with it. But so what? The GPL is not sacred, it's a means to an end, just like copyright itself. If we would be better off without copyright, even accounting for the loss of the GPL, then it would be an acceptable loss. And since copyright reform is on the table as an alternative to abolishment, we can think of reforms that will generally be beneficial and which will have minimal impacts on the GPL. For example, we could reduce software copyright terms to last only a few years on any particular version, but require everyone who wants a software copyright to at least reveal their source code and thoroughly comment it, so that everyone can inspect it (though not use it during the copyright term; c.f. patents) and then use the source once the copyright expires. New versions would be derivatives of the old, and so if you didn't want people to be able to copy your binaries, you'd have to get a copyright on the new material, again with source disclosure. Likewise, the law could use copyright as a weapon against DRM by making them mutually exclusive and promoting DRM circumvention and wide-scale copying of the necessarily public domain DRMed materials (there'd be no such thing as copyrighted DRMed materials). I suspect that reforms like this would make the public much better off, and that incentives for authors would barely be reduced, since they're so concentrated in the first initial weeks to year or so from publication.
You ought to think about this sort of thing, rather than automatically assume that the current system is the best and thus worthy of defending.
Providing torrent files wouldn't be direct infringement, but would rather easily fall under one or more forms of indirect infringement. This is because when you help someone infringe, you're in just as much trouble as the infringer is. There are limits to this: not just anything is sufficient to qualify, and where it is, there may be protections for you. This is why Google (in their main business at least) doesn't get in trouble the way that Napster did; there are enough differences that they don't have to fear being shut down. But your average torrent site isn't particularly different from Napster in any way that counts.
Actually reading the Napster case and the relevant bits of 17 USC 512 would likely prove informative as to just how it works, and why one site, acting one way, might be treated more favorably than another site, acting another way.
Plus, courts do have some leeway, and on the whole they don't like people with unclean hands. They'll still treat them fairly, but they needn't be friendly, and sometimes that can be serious trouble. Napster tended to run afoul of this sort of thing too.
No you can't. Patents apply to use of the patented invention, whether commercial or not. Take a look at 35 USC 271(a). There is an exception for experimental use, but it is extremely limited, and ordinary people who merely wanted to use the patented method would never win on that basis.
Actually, the Supreme Court said that the 5th Amendment due process clause is what applies to the federal government, rather than the 14th, but that they both mean exactly the same thing.
as I understand it, if I travel to.ru or.cn and buy bootleg discs over there, that is actually not really a _US_ crime if it occurs over there.
That's correct. US copyright law stops at the border (though transactions crossing the border fall under it as well).
the source of the songs is in.ru (in this case) and its arguable, equally (it seems to me) that you can say the songs were BOUGHT 'over there' (the billing occurs over there and not here) and what I did was 'import' single copies.
Well, there's the big difference. Geographic location matters.
If the transaction occurred wholly within Russia, then that would be one thing. But here, the downloader never goes to Russia at all. He is always within the US, and so US law always applies to his conduct. Even if his conduct affects other countries, he's still here.
Let's break down what happens step-by-step.
We have Alice, the downloader, in America, and Bob, the uploader, in Russia. Everything that Alice does has to comply with US law. Everything that Bob does has to comply with Russian law. And in fact, both countries can and do regulate trade across their borders such that no one from foreign countries is allowed to trade across the border without complying with the law on both sides. Enforcement may be thorny, but the obligation remains.
I'm an American copyright lawyer, and I really don't know anything about Russian law. Let's assume that it does what it is claimed to do: it permits Bob to distribute copies in Russia.
That doesn't tell us what Alice is or isn't allowed to do; she falls under US copyright law. US copyright law (17 USC 101) says that a copy is a material object in which a creative work is fixed. For example, a novel is a creative work, but it is intangible. It can be printed in a thousand different paperbacks, but the novel is the same, and is present in each of those. A copy would be the paperback itself -- the material object in which the intangible work is fixed. The difference between the work in the abstract, and specific copies of the work, is important.
It is entirely possible to go to Russia, pick up a CD, hold it in your hand, and return to the US with it. But it is not possible to download that CD, since a CD is a material object made out of atoms that cannot be sent across the Internet. Moving the information on that CD is not the same as moving the CD itself. And when you put that information into a new material object on the other end (whether it's another CD, or a hard drive, or whatever), you have fixed the work into yet another material object, thus creating a new copy. A fax machine works similarly; you cannot literally fax a piece of paper over a telephone wire, but you can make a new copy of the original piece of paper using information that was sent over the wire.
US law prohibits the creation of new copies of a copyrighted work (17 USC 106(1)) unless either the law permits it because certain conditions are satisfied (mostly these exceptions are at 17 USC 107-122), or the US copyright holder permits it. Making a new copy is also known as copying, and as reproduction.
The law has a number of exceptions built into it (again, mainly at 17 USC 107-122) that limit the scope of the prohibition. However, most of them only apply to certain kinds of works, or certain kinds of parties, or certain rights. For example, the 109 exception is not applicable here because it deals with the distribution right (17 USC 106(3)), not the reproduction right (17 USC 106(1)). The 120 exception is not applicable here because it deals with architecture, not music. The 121 exception is not applicable here because it deals with copies of literary works made for the blind. And so on.
A copyright holder can grant permission explicitly (e.g. with the GPL) or implicitly (e.g. by putting up a publicly viewable website). The extent of the permission can vary (e.g. the GPL permits copying but only where the copies ar
Downloading is a kind of copying. You actually know this, since you've read and replied to some of my other posts where I quoted courts that actually said as much.
At this point you're just lying, rather than simply being clueless, as I had thought earlier. While I don't like that -- since I want people to be well-informed so that they know when they are or aren't breaking the law (ignorance being no defense) -- you are so worthless to talk with, so unwilling to have an actual discussion, so attached to your unfounded lies, even in the face of cites to the actual law, quotes from actual court opinions, that I'm unwilling to waste my time on you further. I need to go off to work. You OTOH, are free to hang out in your parents' basement and lie to your heart's content.
Given that one of us has a long history of posting accurate information about the law, particularly copyright law, and one of us is a lackwit without having earned a reputation for accuracy, I can only trust that the users here will be smart enough to accept the truth, or at least look into it without blindly and wrongly trusting you, even though your lies are more along the lines of what they'd like to hear.
They don't need to grant you an additional license for it if the law allready allows it.
Which is nice and all, but here the law does not allow it.
Again, remember that allofmp3 HAS the right to sell the music to start with as well.
Not in the US they don't. Russian law cannot override US law within the US. If US law says that the downloading is prohibited for people here, nothing in Russia can counter that. It's just like if the Russians said that Americans don't have to pay taxes, or can kill whoever they want. American law shuts that down here. It's the same with copyright issues.
What makes you think that? What makes you think there is no possible exception, for example for fair use, that makes it not possible to make a copy of a the music you have bought?
I'm an American copyright lawyer. I'm very familiar with our copyright laws. I know that there's no exception that applies. And fair use doesn't either, since all four factors in the fair use analysis are completely against the downloader. This is because we don't view buying from AllOfMP3 to be legitimate. It's piracy. It's not treated differently from downloading from any other pirate, except that the downloader was foolish enough to pay money to do it.
Of course, you can claim that each law grantsa "different" copyright but since they are tied in the way that this is automatic they are really one and the same.
No, they are different, they are in fact substantively different, and they are not tied together. They're just granted initially to the same person.
Nothing prevents anyone buing such music to then move the copy bought to some other country without the permission from copyrighth holder (at least as long as it is for private/personal use and so on). A copyright holder in another country can't forbid that
Actually, the law prevents this. Copyright holders forbid it routinely, and tend to win in the process. The law favors them greatly.
In the same way, making additional copies from it is not treated any different based on from were it came as long as it was not an infrining one to start with, which, it isn't since allofmp3 has the legal right to sell it to start with.
No, making more copies is always illegal unless there is permission from the US rightsholder -- which there isn't, here -- or an applicable exception -- which there isn't here -- and in any event, no copy was moved between countries, rather a new one was created in the US based upon a copy that never left Russia.
The law does not say that reproduction is only against the law if it is from an unauthorized copy. If I take a legally made book, and print up a thousand copies of it myself, I've broken the law. If I sell them, I've broken another law. If the buyers make more copies of those, they've broken the law because what is illegal is making copies, not making copies with a certain history. Their making copies is exactly the same offense as when I made copies earlier.
Go ahead and delude yourself -- you obviously can't be talked out of it. But at least shut up so that you don't trick other people. They should know the facts before they do whatever they want to do.
you don't need, as a buyer, any special permission from the copyright holder
Yes, you do. Each of those cases says that downloaders are liable for infringement. They never say that this is due to the uploading being infringing as well. It's because all downloading is infringing if it is of copyrighted works, if there is not permission from the US copyright holder, and there is no exception in US law that applies.
Here, there are copyrighted works, there is no permission from the US copyright holder, and there is no exception in US law that applies. iTunes has permission from the proper copyright holder. AllOfMP3 is relying on an exception in Russian law. They are wrong to do so, just as you are wrong in most or all of your posts about this.
What makes you think that moving files over the net can not be an import (or export for that matter)?
The ordinary definition of the word, and also US copyright law, which I'm pretty damn familiar with.
No, making copies can in SOME case be infrigning, and in other cases not be infringing.
That's like assassinating someone, and then saying that sometimes you can kill in self-defense. You're right, but this is not one of those times. Here, it's infringing, unless you can point an applicable exception in the law. (hint: 602 is not applicable, since it doesn't permit copies to be made, only moved, and copies are never moved when you download, since copies are defined in the law as material objects)
No, you can do copies unless there is a law that forbids that specific copying.
Okay. 17 USC 106(1). It forbids all copying unless there is an exception elsewhere in the law that applies. Now you get to find one that does. Remember my hint to you just above.
So what is the definition of "import" since it isn't defined in the copyright law. In this case, you bought music in Russia and takes it to your home country?
Well, you'd use an ordinary definition of import (e.g. 'bring goods into a country from abroad') and try to see if the statute provides further meaning. Here it does. 602 says that importation is a form of distribution, the 106(3) right, and that certain kinds of importation are not infringements of the 106(3) right.
But here, it's the 106(1) right we're looking at. New copies are being made, rather than existing copies being brought in. This means that the definition of import used here could only pertain to copies being physically moved over borders, rather than new copies being made based on information that has intangibly moved over the border.
In any event, AllOfMP3 doesn't really have a license as far as US law is concerned. It has a compulsory license, which is to say that Russian law says that anyone can make a copy, but they have to pay a certain amount in order to do so. No one can be turned away. We have a similar sort of thing at 17 USC 115. This means that they're piratical copies (since US law, had it applied, would not permit this), and would fall under 602(b) even if 602 was relevant at all.
No, you do not nessecarilly need a license to download music from iTuenes.
Yes, you always do. It is part of the iTunes EULA, and Apple's ability to grant that license was given to them by the copyright holders, and is highly conditional.
There are many exceptions when you can create copies without having to get a license.
True. Not one of them applies in this case, however. Not one.
Actually there is basically one entity (or a gorup of persons if joint) that holds the copyright, they can then grant others right to, for example copy, sell, distribute or whatever. Those persons would not be copyright holders though. So if A creates the work he would hold the copyright in both US and Russia. Copyright are not hel per teritory (as patents or trademarks) you will get the copyright in basically the whole world automatically, at least those countries which have signed the Bern convention which is basically all countries in the world.
Completely wrong.
Copyrights are not international in nature, they are national. A US copyright is not the same copyright as a Russian copyright. They are granted by different governments. Berne doesn't combine them. It only says that all Berne countries must each grant a copyright when the work is created. The copyrights only apply in the countries where they're granted. They differ somewhat in terms of their length (US copyrights last longer than most European copyrights, for example), in what they cover (databases are not copyrightable in the US, but usually are in Europe), etc.
While they are usually granted to the same person initially, that person can dispose of the copyrights as they see fit. They can sell them or keep them. They can do so on any basis they like. If I write a book and decide to sell the UK copyright to a friend, I can do that. Or, I can break up the rights, and sell only the right to make movies based on the book, but for all the different countries at once, or any other variation.
You really don't know crap about copyright law. Why are you even posting here?
Now, if he grants someone in Russia the permission to sell copies in Russia, then that person can do so in Russia.
He didn't. Russian law says that anyone has permission automatically. It's a compulsory license. In the US, we also have some compulsory licenses. But since these are not real licenses which are agreed to, but are in fact exceptions in the law, they have no weight outside of the border. A Russian law means nothing within the US, just as a US law means nothing within Russia.
Actually it is the opposite, it is quite unregulated, at least on a consumer level which is what we are talking about here. It is not about import and export between countries. It is about a consumer buying something from another country and bringing that product home. Not much mroe different from you buying something on your holliday trip abroad.
No, all of that is still quite regulated. You're confusing laxity in enforcement (which is actually also the case for commercial international trade) with laxity in regulation.
In any event, importation is not happening here. Downloading is copying, not importation.
Copyright law doesn't treat such much at all, it is not about trading, purchasing or selling, there are other laws for that.
Actually those are all forms of distribution, and copyright law is very concerned about distribution.
The downloaded and the purchaser is not required to have any such license.
Absolutely wrong. In the US, downloading is against the law every bit as much as uploading is. If you download copyrighted music without permission from the US rightsholder or an exception of some type in US law (Russian law granting a compulsory license does not count) then you are infringing. The law is quite clear on this, the courts have said so on a number of occassions. You can't deny it, you can only lie about it.
So? Just as when you buy from iTunes or visit websites. No difference.
The difference is that there, the US copyright holder has granted permission. This is why some songs are not available on iTunes; the copyright holders haven't given Apple permission to distribute copies nor to pass on permission to their paying customers to make copies.
No, those court cases was against the uploader (or actually the company making the software itself), not downloaders.
The court cases were against organizations that were involved but not the direct infringers, yes. But the law says that you cannot sue an indirect infringer unless you can prove that they were closely enough involved in a direct infringement. So you end up having to make the case against the users anyway, and the defendant still defends them since it will help them.
In the Napster case, the court said this:
We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.
allofmp3 HAS a license to sell their music.
Assuming this is true, such a license is still only valid within Russia, because it is a compulsory license created by Russian law. Even if it claims to be valid elsewhere, Russian law cannot override the law elsewhere, e.g. in the US.
So the license is worthless as far as a US downloader is concerned. It does not protect him in any way whatsoever.
For the downloader, the usual requirement is that the original is made available in a non infringing way. Hence, downloading from a s ource made availabel in a non infringing way is legal (or in some countries, personal/private copies is legal no mater what).
Not in the US.
The buyer doens't need a licens any more than if you go to a shop and buy or buys anything else over the net, that is downloaded to you.
Buying a copy is not the same thing as making a new copy. Going to a store involves the former. Downloading involves the latter. The former is not against the law. The latter is.
If you want to claim allofmp3 as illegal, you must claim iTunes and anyone else selling over then net as illegal too, they are the same.
Wrong, because they have a license that is valid in the US. They are not the same. (This is also why they have only slowly expanded into certain foreign markets -- they had to negotiate for licenses in each of them)
Not true, since there are many cases were you can make a copy that that is non infringing.
Sure, but this is not one of them. Here, the work copied isn't in the public domain, you do not have permission from the US rightsholder, you do not have an exception under US law, so you're sunk. You need one of those things in the US if you want to make copies.
That uploaders get sued more than downloaders means nothing. The reason for it is because uploaders are easier to find, and are closer to the 'head of the snake,' making it more advantageous to shut them down. (It's the same reason that they go after the networks as a whole, as in Napster, Grokster, etc.; it'll make things harder for everyone downstream, or at least, that's the theory). In short, it's purely a strategic decision. From a legal perspective, they're easy targets, but too minor to bother with if there's anyone better to go after.
As for downloading generally, I've been writing the same basic posts enough for one night. I'll just quote from the Utah Lighthouse case, which I find is very clear about the issues involved. It deals with web browsing, but there's no material difference between that and downloading material with a P2P app, or anything else, so far as we're concerned for this discussion.
The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.
"Copy" is defined in the Copyright Act as: "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.
When a person [**10] browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. n5 See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.
--Footnotes--
n5 Although this seems harsh, the Copyright Act has provided a safeguard for innocent infringers. Where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages. . .." 17 U.S.C. 504(c)(2).
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The thing is that mp3's can be made by anybody (with the proper software) and they can be named various variations of names, and can be made with various levels of sound quality, bitrate, etc.. A direct copy of an original digital file would of course be different.
No, a lossless rip would be different, but most people don't do them. More commonly, people rip CDs, even their own CDs, to mp3s.
I personaly don't see how recording a mixed tape and giving it to a freind is any different than converting CD's to mp3's and sharing it with a freind.
One material difference is that one is on a cassette tape, and one is not. That matters a bit. But other than that, I'd say that there's no particular difference, and that unless you can make a good fair use argument (which is unlikely), it would be illegal to do either.
The fact that is is easier on the internet is I suppose the difference. If you made tapes and tried selling them, or you made CD's with mp3's and tried selling them then I could see a problem.
No, the Internet is not really a factor, unless the facts are different than what you started out with above. And yes, if you were making money at it, things would be even worse for you.
I also see no problems with someone regularly scrubbing their hard drive of logs and files if they are paranoid, which is their right, just as it is their right to erase their browser history and cookies etc... sure it's suspicious, but prove wrong doing externaly then.
A good solution is to have a data retention policy by which you destroy all records that are of a certain age automatically. That way it's not really suspicious, it's routine. Most businesses that bother to think about possible litigation will have such policies. Of course, if a court tells you to stop because something's come up, then you have to stop doing that. Simply not keeping logs and such is also viable.
Unless the computer is seized unexpectedly, I would think a removable second drive could be used to contain the files, and since the operating system is on the main drive how would they know that watever removable drive was submited with the main drive was or wasn't being used all along ?
That's why when you're doing discovery you just request everything you can get that you might want; the other side becomes obligated to hand it over. It's generally the police that seize stuff, but they'd just take everything. Your idea isn't all that original, you see, nor is it very useful.
A few points.
First, they don't have to review any file unless they want to, because the plaintiff gets to choose what it bases its case on. If they want to ignore a particular file then it only helps the defendant for them to do so. So your #2 is rather stupid. (Though from my own experiences, I would say that disguising a file adequately could work pretty easily unless the reviewer had some reason to look further, such as if disguised files became a commonly used tactic by infringers)
Second, for files they are initially interested in, I assure you, they really will review them in their entirety. I've had to do this sort of thing myself at times, and let me tell you, it is very boring. But it does brighten the day of the reviewers to come across evidence of illicit workplace romances, affairs, arguments, illegal activities (whether related to the case or not), etc. Regular ol' porn, not so interesting, actually. It's more fun to hear about things than to see them graphically. So don't worry about your #1.
Third, your #3 is again, rather stupid. If a file is found that the plaintiff is going to go to court with, the mere presence of the file is enough to go to the jury with. The defendant can argue that the file was put there by someone else. It is up to the jury to decide who they believe; that is their job. It's no different than if one side had a witness that said he saw the defendant do it, and another witness with the exact opposite story.
The way that this sort of thing tends to work is that a basic search is run, and then humans go through all of the positive matches, trimming that down to just what is relevant in the specific case. A couple of rounds of human level review are normal, since you start off erring on the side of inclusiveness, but you do want to get rid of non-relevant matches in each round, and you get more precise as to what matches and what doesn't as you go through. Digital signatures will only be used in the first round, most likely. After that, human beings will actually listen to the music, identify the songs, etc.
Since one of the prima facie elements for the suit is that the plaintiff can show that he is the copyright holder, public domain works will ultimately not be counted.
Does it differentiate any of the legal backup rips of my CDs from "their music" and flag which is not or which is "pirate"?
No, nor should it. If you rip a CD, you are prima facie infringing and it is perfectly fine for the copyright holder to sue you for it, whether you own the CD or not. In order to win, you, the defendant, would have to make a successful defense of fair use. That is, it is your obligation to prove that each of those rips was fair under the circumstances it was made. You're likely to succeed, so the plaintiff will probably make it a point, during discovery, to ignore copies you ripped from CDs you owned at the time of the rip. But there's no such thing as an automatic right to rip your CDs to a computer hard drive.
And look at the explosion of commerce and innovation that happened once we had a good framework in place. There are a number of reasons the Industrial Revolution happened, but advances in technology (and law) and banking are huge contributors.
Post hoc, ergo propter hoc? That's a fallacy, not an argument.
Dairy cows should be treated gently, because they have feelings, too.
I disagree. I am not advocating cruelty as an end unto itself, but I have no problem with necessary harm. If milk yields can be safely improved best by kicking the cows, then that's what should happen. If they can be safely improved best by massaging them, then I'd be in favor of that. I certainly wouldn't kick a cow for the hell of it; that's a waste of effort that could be used more productively and might imperil yields.
This is all more clear if we move from dairy cows to, say, bees (which don't at all like people taking their honey), or animals raised for slaughter (which would prefer not to be killed and eaten).
By the same token, authors should be treated fairly. In fact, since they can talk and vote unlike cows, I imagine it would be rather hard to treat them harshly for the good of the public, which they happen to be a part of.
Yes, but authors-as-members-of-the-public are not appreciably different from other members of the public. They like getting works for free, they like the freedom to use others' works, etc. They're only different when they want something at the expense of all members of the public who aren't authors. And then, the appropriate question is why they should get something at everyone else's expense unless everyone else benefits from this more than they would if they said no.
I don't think you can ignore the authors when making copyright laws
Why not? I simply mean to not favor them in any way. If giving them something is so beneficial for the public that it makes up for the cost of giving them the thing, and ultimately yields a net public benefit, then it's in our interests to do so. But I'm not doing it merely because it benefits them or they ask for it.
And if giving them something yields a net public detriment, then it is in our interests to deny them. Again, we're not doing it merely because it benefits them or they ask for it.
I'm happy to give artists whatever they want, so long as I am better off for it. But copyright is not a charity, and artists must never get any copyright just to be nice or fair. Besides, no artist asks for a copyright to be fair. A copyright is control over what other people can do, and is almost invariably sought because the artist wants to make money. Given that artists are acting out of their own self-interest, I see no reason for the public at large not to do the same.
Copyright is kind of like a contract between authors and the rest of the public, and like any contract, it should be fair to both sides.
Not only is copyright not like a contract, but contracts are never required to be fair to both sides, which is good since they are virtually never fair.
We are not dealing with commodity goods, we do not have equivalent goods. Each movie or song is a unique piece of art, one is not a replacement for another, the market is not deprived.
You're wrong, but that's because you're looking at the wrong aspect of the market. Copyright is a monopoly over specific works. Each copyright is a monopoly as to that specific work. For example, Disney has a monopoly over their movie adaptation of Aladdin. No one else can make copies of it. On the other hand, they don't have a copyright on the underlying story of Aladdin, people can make copies of the underlying story (just as Disney has done), and the market benefits from competition between authors for the best retelling of the story. A monopoly on the underlying story would deprive the public of many versions of Aladdin, just as a monopoly on any one version deprives the public of the many versions that could spring from that. Nor is this limited to derivatives; since Disney has a monopoly on their version of Aladdin, the market cannot deliver identical copies of their version at a lower cost. This is a classic example of a monopolist harming consumers. Without their monopoly, the movie would likely be available from many sources, and the cost would be far lower. Some might even make it available for free.
You confuse ownership with the ability to enforce authorized distribution. The fact that enforcement is not 100% does not change ownership.
Again, you're misunderstanding me, and that's the source of the confusion. I never mentioned enforcement. I said that if you lack the right of control, you don't own anything anyway. After all, a copyright is simply the right to prevent people from doing certain things with regard to a certain work. If you lack that right, you lack a copyright. How easily you can exercise that right isn't something I was talking about.
I stated in my post that people would take source, modify it, and release binaries but not the modified source.
Yes. And I am suggesting that a good reform to copyright would be one in which if you did this, you couldn't get a copyright, and would thus be risking that other people could copy your binaries freely, which you probably would not like. This provides an incentive to pursue a copyright, which would require that you make your source publicly readable so that, when your copyright expired (remember that you were avoiding the GPL by waiting for a hypothetical short copyright term to expire), your modified source is readily available. And since copyright doesn't protect ideas, any improvements in the software's functionality could be used during the copyright term, provided that it was implemented without copying the source as you had written it.
I'm perfectly aware that this might have some impact on the GPL, since one could wait for the copyright to expire on GPL'ed software so long as you were willing to be a bit out of date. But on the whole, most software is not GPL'ed, the source is permanently closed, often lost, and the software remains copyrighted far too long. I think that my ideas of mandating deposit of commented source and shortening the term to a few years would provide a significant benefit for the public, even accounting for whatever detriment might occur with regard to the GPL. That is to say, I'm more concerned as to the big picture.
I have no right whatsoever to complain if someone else simply copies my work and tries to sell it themselves?
Basically, yes. Whatever useful right to complain that you've got is one that is given to you by the public, and is meant to serve the public interest. No one at all cares about you, or what you want, other than that it is a useful way to manipulate you. I.e. you want money, and we want public domain works, so we give you a limited, temporary monopoly that you gamble will make you money, and you create the work that we will ultimately get whether you actually make money or not.
The lack of any laws wouldn't be all bad. There were no copyright laws prior to 1710 in England, and in most of the world not until well into the 19th and 20th centuries, and often copyright only covered some kinds of art and not other kinds. And a lot of works were created by authors who often could manage to be fairly successful and comfortable, entirely without copyright.
But in any event, this is a red herring. There is a much stronger call for reform of the law than there is to abolish it altogether. Getting rid of criminal penalties, shortening the length of copyright (if the game makes you any money, it'll do so quite rapidly; you don't need many decades of copyright -- especially since you only need to make enough to incentivize you, so far as the public is concerned), shortening the scope of copyright (e.g. mandating that the source be revealed and deposited in the Library of Congress if you want a copyright, though you're free to rely on trade secret laws if you forgo copyright; or mandating that you can't use DRM if you want a copyright, though you're free to use it if you forgo copyright and think you can withstand a government supported DRM-cracking agenda meant to get those public domain works into all the hands that want them).
Balance is irrelevant. The best copyright law is the one that best serves the public. No one cares how well authors do under it, except insofar as that affects whether the public is best served. Kind of like how a dairy farmer doesn't care if his dairy cows are happy, except insofar as it affects the milk yield. If treating them gently will make him more money, he'll do it. If treating them harshly will make him more money, he'll do that instead. Copyright's quite similar, with the public as the farmer, the authors as the cows, and their creative works as the milk.
Actually, that was _this_ law. In the US, criminal penalties for infringement generally have been around since 1897. Unless you're a highlander or something, that's pretty dry paint.
You're wrong.
A copyright monopoly is little different than, say, a cable tv monopoly. Artificial monopolies are inherently bad, depriving the market of the beneficial effects of competition for what is essentially a commodity good. So we shouldn't grant them for the hell of it, or because a monopolist is a nice person. We -- the public -- do it when it benefits us to do so, even taking into account all of the downsides to it.
Whether something is a 'luxury' or not is irrelevant. (And btw, culture is not a luxury) Likewise, the issue is whether someone gets to control anything; if they don't, then they aren't any kind of owner, making your second point circular.
While few are suggesting we abolish copyright (as opposed to the many who suggest we reduce it in length and scope), yes, the GPL would go with it. But so what? The GPL is not sacred, it's a means to an end, just like copyright itself. If we would be better off without copyright, even accounting for the loss of the GPL, then it would be an acceptable loss. And since copyright reform is on the table as an alternative to abolishment, we can think of reforms that will generally be beneficial and which will have minimal impacts on the GPL. For example, we could reduce software copyright terms to last only a few years on any particular version, but require everyone who wants a software copyright to at least reveal their source code and thoroughly comment it, so that everyone can inspect it (though not use it during the copyright term; c.f. patents) and then use the source once the copyright expires. New versions would be derivatives of the old, and so if you didn't want people to be able to copy your binaries, you'd have to get a copyright on the new material, again with source disclosure. Likewise, the law could use copyright as a weapon against DRM by making them mutually exclusive and promoting DRM circumvention and wide-scale copying of the necessarily public domain DRMed materials (there'd be no such thing as copyrighted DRMed materials). I suspect that reforms like this would make the public much better off, and that incentives for authors would barely be reduced, since they're so concentrated in the first initial weeks to year or so from publication.
You ought to think about this sort of thing, rather than automatically assume that the current system is the best and thus worthy of defending.
Pft. That's just during the week. On the weekends I like to take some time off, so I only bill 60 hours a day.
Providing torrent files wouldn't be direct infringement, but would rather easily fall under one or more forms of indirect infringement. This is because when you help someone infringe, you're in just as much trouble as the infringer is. There are limits to this: not just anything is sufficient to qualify, and where it is, there may be protections for you. This is why Google (in their main business at least) doesn't get in trouble the way that Napster did; there are enough differences that they don't have to fear being shut down. But your average torrent site isn't particularly different from Napster in any way that counts.
Actually reading the Napster case and the relevant bits of 17 USC 512 would likely prove informative as to just how it works, and why one site, acting one way, might be treated more favorably than another site, acting another way.
Plus, courts do have some leeway, and on the whole they don't like people with unclean hands. They'll still treat them fairly, but they needn't be friendly, and sometimes that can be serious trouble. Napster tended to run afoul of this sort of thing too.
No you can't. Patents apply to use of the patented invention, whether commercial or not. Take a look at 35 USC 271(a). There is an exception for experimental use, but it is extremely limited, and ordinary people who merely wanted to use the patented method would never win on that basis.
Actually, the Supreme Court said that the 5th Amendment due process clause is what applies to the federal government, rather than the 14th, but that they both mean exactly the same thing.
as I understand it, if I travel to .ru or .cn and buy bootleg discs over there, that is actually not really a _US_ crime if it occurs over there.
.ru (in this case) and its arguable, equally (it seems to me) that you can say the songs were BOUGHT 'over there' (the billing occurs over there and not here) and what I did was 'import' single copies.
That's correct. US copyright law stops at the border (though transactions crossing the border fall under it as well).
the source of the songs is in
Well, there's the big difference. Geographic location matters.
If the transaction occurred wholly within Russia, then that would be one thing. But here, the downloader never goes to Russia at all. He is always within the US, and so US law always applies to his conduct. Even if his conduct affects other countries, he's still here.
Let's break down what happens step-by-step.
We have Alice, the downloader, in America, and Bob, the uploader, in Russia. Everything that Alice does has to comply with US law. Everything that Bob does has to comply with Russian law. And in fact, both countries can and do regulate trade across their borders such that no one from foreign countries is allowed to trade across the border without complying with the law on both sides. Enforcement may be thorny, but the obligation remains.
I'm an American copyright lawyer, and I really don't know anything about Russian law. Let's assume that it does what it is claimed to do: it permits Bob to distribute copies in Russia.
That doesn't tell us what Alice is or isn't allowed to do; she falls under US copyright law. US copyright law (17 USC 101) says that a copy is a material object in which a creative work is fixed. For example, a novel is a creative work, but it is intangible. It can be printed in a thousand different paperbacks, but the novel is the same, and is present in each of those. A copy would be the paperback itself -- the material object in which the intangible work is fixed. The difference between the work in the abstract, and specific copies of the work, is important.
It is entirely possible to go to Russia, pick up a CD, hold it in your hand, and return to the US with it. But it is not possible to download that CD, since a CD is a material object made out of atoms that cannot be sent across the Internet. Moving the information on that CD is not the same as moving the CD itself. And when you put that information into a new material object on the other end (whether it's another CD, or a hard drive, or whatever), you have fixed the work into yet another material object, thus creating a new copy. A fax machine works similarly; you cannot literally fax a piece of paper over a telephone wire, but you can make a new copy of the original piece of paper using information that was sent over the wire.
US law prohibits the creation of new copies of a copyrighted work (17 USC 106(1)) unless either the law permits it because certain conditions are satisfied (mostly these exceptions are at 17 USC 107-122), or the US copyright holder permits it. Making a new copy is also known as copying, and as reproduction.
The law has a number of exceptions built into it (again, mainly at 17 USC 107-122) that limit the scope of the prohibition. However, most of them only apply to certain kinds of works, or certain kinds of parties, or certain rights. For example, the 109 exception is not applicable here because it deals with the distribution right (17 USC 106(3)), not the reproduction right (17 USC 106(1)). The 120 exception is not applicable here because it deals with architecture, not music. The 121 exception is not applicable here because it deals with copies of literary works made for the blind. And so on.
A copyright holder can grant permission explicitly (e.g. with the GPL) or implicitly (e.g. by putting up a publicly viewable website). The extent of the permission can vary (e.g. the GPL permits copying but only where the copies ar
Downloading is a kind of copying. You actually know this, since you've read and replied to some of my other posts where I quoted courts that actually said as much.
At this point you're just lying, rather than simply being clueless, as I had thought earlier. While I don't like that -- since I want people to be well-informed so that they know when they are or aren't breaking the law (ignorance being no defense) -- you are so worthless to talk with, so unwilling to have an actual discussion, so attached to your unfounded lies, even in the face of cites to the actual law, quotes from actual court opinions, that I'm unwilling to waste my time on you further. I need to go off to work. You OTOH, are free to hang out in your parents' basement and lie to your heart's content.
Given that one of us has a long history of posting accurate information about the law, particularly copyright law, and one of us is a lackwit without having earned a reputation for accuracy, I can only trust that the users here will be smart enough to accept the truth, or at least look into it without blindly and wrongly trusting you, even though your lies are more along the lines of what they'd like to hear.
They don't need to grant you an additional license for it if the law allready allows it.
Which is nice and all, but here the law does not allow it.
Again, remember that allofmp3 HAS the right to sell the music to start with as well.
Not in the US they don't. Russian law cannot override US law within the US. If US law says that the downloading is prohibited for people here, nothing in Russia can counter that. It's just like if the Russians said that Americans don't have to pay taxes, or can kill whoever they want. American law shuts that down here. It's the same with copyright issues.
What makes you think that? What makes you think there is no possible exception, for example for fair use, that makes it not possible to make a copy of a the music you have bought?
I'm an American copyright lawyer. I'm very familiar with our copyright laws. I know that there's no exception that applies. And fair use doesn't either, since all four factors in the fair use analysis are completely against the downloader. This is because we don't view buying from AllOfMP3 to be legitimate. It's piracy. It's not treated differently from downloading from any other pirate, except that the downloader was foolish enough to pay money to do it.
Of course, you can claim that each law grantsa "different" copyright but since they are tied in the way that this is automatic they are really one and the same.
No, they are different, they are in fact substantively different, and they are not tied together. They're just granted initially to the same person.
Nothing prevents anyone buing such music to then move the copy bought to some other country without the permission from copyrighth holder (at least as long as it is for private/personal use and so on). A copyright holder in another country can't forbid that
Actually, the law prevents this. Copyright holders forbid it routinely, and tend to win in the process. The law favors them greatly.
In the same way, making additional copies from it is not treated any different based on from were it came as long as it was not an infrining one to start with, which, it isn't since allofmp3 has the legal right to sell it to start with.
No, making more copies is always illegal unless there is permission from the US rightsholder -- which there isn't, here -- or an applicable exception -- which there isn't here -- and in any event, no copy was moved between countries, rather a new one was created in the US based upon a copy that never left Russia.
You really need to learn when to quit.
How is that material, though?
The law does not say that reproduction is only against the law if it is from an unauthorized copy. If I take a legally made book, and print up a thousand copies of it myself, I've broken the law. If I sell them, I've broken another law. If the buyers make more copies of those, they've broken the law because what is illegal is making copies, not making copies with a certain history. Their making copies is exactly the same offense as when I made copies earlier.
Go ahead and delude yourself -- you obviously can't be talked out of it. But at least shut up so that you don't trick other people. They should know the facts before they do whatever they want to do.
you don't need, as a buyer, any special permission from the copyright holder
Yes, you do. Each of those cases says that downloaders are liable for infringement. They never say that this is due to the uploading being infringing as well. It's because all downloading is infringing if it is of copyrighted works, if there is not permission from the US copyright holder, and there is no exception in US law that applies.
Here, there are copyrighted works, there is no permission from the US copyright holder, and there is no exception in US law that applies. iTunes has permission from the proper copyright holder. AllOfMP3 is relying on an exception in Russian law. They are wrong to do so, just as you are wrong in most or all of your posts about this.
What makes you think that moving files over the net can not be an import (or export for that matter)?
The ordinary definition of the word, and also US copyright law, which I'm pretty damn familiar with.
No, making copies can in SOME case be infrigning, and in other cases not be infringing.
That's like assassinating someone, and then saying that sometimes you can kill in self-defense. You're right, but this is not one of those times. Here, it's infringing, unless you can point an applicable exception in the law. (hint: 602 is not applicable, since it doesn't permit copies to be made, only moved, and copies are never moved when you download, since copies are defined in the law as material objects)
No, you can do copies unless there is a law that forbids that specific copying.
Okay. 17 USC 106(1). It forbids all copying unless there is an exception elsewhere in the law that applies. Now you get to find one that does. Remember my hint to you just above.
So what is the definition of "import" since it isn't defined in the copyright law. In this case, you bought music in Russia and takes it to your home country?
Well, you'd use an ordinary definition of import (e.g. 'bring goods into a country from abroad') and try to see if the statute provides further meaning. Here it does. 602 says that importation is a form of distribution, the 106(3) right, and that certain kinds of importation are not infringements of the 106(3) right.
But here, it's the 106(1) right we're looking at. New copies are being made, rather than existing copies being brought in. This means that the definition of import used here could only pertain to copies being physically moved over borders, rather than new copies being made based on information that has intangibly moved over the border.
In any event, AllOfMP3 doesn't really have a license as far as US law is concerned. It has a compulsory license, which is to say that Russian law says that anyone can make a copy, but they have to pay a certain amount in order to do so. No one can be turned away. We have a similar sort of thing at 17 USC 115. This means that they're piratical copies (since US law, had it applied, would not permit this), and would fall under 602(b) even if 602 was relevant at all.
No, you do not nessecarilly need a license to download music from iTuenes.
Yes, you always do. It is part of the iTunes EULA, and Apple's ability to grant that license was given to them by the copyright holders, and is highly conditional.
There are many exceptions when you can create copies without having to get a license.
True. Not one of them applies in this case, however. Not one.
Actually there is basically one entity (or a gorup of persons if joint) that holds the copyright, they can then grant others right to, for example copy, sell, distribute or whatever. Those persons would not be copyright holders though. So if A creates the work he would hold the copyright in both US and Russia. Copyright are not hel per teritory (as patents or trademarks) you will get the copyright in basically the whole world automatically, at least those countries which have signed the Bern convention which is basically all countries in the world.
Completely wrong.
Copyrights are not international in nature, they are national. A US copyright is not the same copyright as a Russian copyright. They are granted by different governments. Berne doesn't combine them. It only says that all Berne countries must each grant a copyright when the work is created. The copyrights only apply in the countries where they're granted. They differ somewhat in terms of their length (US copyrights last longer than most European copyrights, for example), in what they cover (databases are not copyrightable in the US, but usually are in Europe), etc.
While they are usually granted to the same person initially, that person can dispose of the copyrights as they see fit. They can sell them or keep them. They can do so on any basis they like. If I write a book and decide to sell the UK copyright to a friend, I can do that. Or, I can break up the rights, and sell only the right to make movies based on the book, but for all the different countries at once, or any other variation.
You really don't know crap about copyright law. Why are you even posting here?
Now, if he grants someone in Russia the permission to sell copies in Russia, then that person can do so in Russia.
He didn't. Russian law says that anyone has permission automatically. It's a compulsory license. In the US, we also have some compulsory licenses. But since these are not real licenses which are agreed to, but are in fact exceptions in the law, they have no weight outside of the border. A Russian law means nothing within the US, just as a US law means nothing within Russia.
Actually it is the opposite, it is quite unregulated, at least on a consumer level which is what we are talking about here. It is not about import and export between countries. It is about a consumer buying something from another country and bringing that product home. Not much mroe different from you buying something on your holliday trip abroad.
No, all of that is still quite regulated. You're confusing laxity in enforcement (which is actually also the case for commercial international trade) with laxity in regulation.
In any event, importation is not happening here. Downloading is copying, not importation.
Copyright law doesn't treat such much at all, it is not about trading, purchasing or selling, there are other laws for that.
Actually those are all forms of distribution, and copyright law is very concerned about distribution.
The downloaded and the purchaser is not required to have any such license.
Absolutely wrong. In the US, downloading is against the law every bit as much as uploading is. If you download copyrighted music without permission from the US rightsholder or an exception of some type in US law (Russian law granting a compulsory license does not count) then you are infringing. The law is quite clear on this, the courts have said so on a number of occassions. You can't deny it, you can only lie about it.
The difference is that there, the US copyright holder has granted permission. This is why some songs are not available on iTunes; the copyright holders haven't given Apple permission to distribute copies nor to pass on permission to their paying customers to make copies.
No, those court cases was against the uploader (or actually the company making the software itself), not downloaders.
The court cases were against organizations that were involved but not the direct infringers, yes. But the law says that you cannot sue an indirect infringer unless you can prove that they were closely enough involved in a direct infringement. So you end up having to make the case against the users anyway, and the defendant still defends them since it will help them.
In the Napster case, the court said this:
allofmp3 HAS a license to sell their music.
Assuming this is true, such a license is still only valid within Russia, because it is a compulsory license created by Russian law. Even if it claims to be valid elsewhere, Russian law cannot override the law elsewhere, e.g. in the US.
So the license is worthless as far as a US downloader is concerned. It does not protect him in any way whatsoever.
For the downloader, the usual requirement is that the original is made available in a non infringing way. Hence, downloading from a s ource made availabel in a non infringing way is legal (or in some countries, personal/private copies is legal no mater what).
Not in the US.
The buyer doens't need a licens any more than if you go to a shop and buy or buys anything else over the net, that is downloaded to you.
Buying a copy is not the same thing as making a new copy. Going to a store involves the former. Downloading involves the latter. The former is not against the law. The latter is.
If you want to claim allofmp3 as illegal, you must claim iTunes and anyone else selling over then net as illegal too, they are the same.
Wrong, because they have a license that is valid in the US. They are not the same. (This is also why they have only slowly expanded into certain foreign markets -- they had to negotiate for licenses in each of them)
Not true, since there are many cases were you can make a copy that that is non infringing.
Sure, but this is not one of them. Here, the work copied isn't in the public domain, you do not have permission from the US rightsholder, you do not have an exception under US law, so you're sunk. You need one of those things in the US if you want to make copies.
How is mom and pop consumer to know what retail websites are legit and which are supporting some illegal venture?
That's their problem. US copyright law doesn't care whether they thought they were acting legally or not. It is pretty harsh in that respect.
also, this site has not been proven to be illegitimate via the courts
Of course, we can all read the writing on the wall. Except for those people like yourself, who are keeping their eyes closed, as if that would help.
As for downloading generally, I've been writing the same basic posts enough for one night. I'll just quote from the Utah Lighthouse case, which I find is very clear about the issues involved. It deals with web browsing, but there's no material difference between that and downloading material with a P2P app, or anything else, so far as we're concerned for this discussion.