They would sue them for copyright infringement. And they would be able to have the files deleted, get a judgment for as much as $150,000 per work infringed (which could easily get up into the hundreds of millions for a typical downloader), and, with a bit of luck, get the defendant to have to pay the lawyer's fees and costs, and if they're very nasty (and a bit luckier still) get his computer equipment destroyed so that he can't use it that way again.
You should take a look through 17 USC 502-505. There's some fun stuff in there.
As for grounds for a civil action, that's 17 USC 501 and 106(1). Pretty open and shut, too, if you can identify the downloader.
The downloader is in the US. And unauthorized downloading of copyrighted works is illegal here (see, e.g. the Napster case, or Grokster, or Netcom, or my personal favorite, Intellectual Reserve v. Utah Lighthouse Ministry). The location of the uploader is totally irrelevant to whether or not the downloader is breaking the law.
You're right though, in there's no treaties or anything that are at issue. This is purely a matter of our domestic law.
Whether or not this rises to the level of criminal copyright infringement will depend on just what the infringer's been doing. But as I've pointed out elsewhere, a downloader in the US has to comply with US laws, and our laws (in particular 17 USC 501 and 106(1); n.b. that 106(3) and 602 are not applicable in this case) prohibit this sort of downloading. For it to be criminal, you'd have to look at 17 USC 506, 106(1), and 18 USC 2319. Otherwise it's illegal, but only a civil offense, rather than both a civil and criminal offense.
Whether or not AllOfMP3 is violating any Russian laws, I can't say. I'm not familiar with their laws. I'm a US copyright lawyer, though, and I'm pretty well-versed in ours.
Yes, you do. The difference is, AllofMP3 isn't selling in the US. Instead, the purchaser is going to Russia. Then they perform a transaction in Russia, and the purchaser returns to the US with his purchased music. Now, is importing music you legally purchased in a foreign country illegal in the US? No, it's not.
No, the transaction occurs in both the US and Russia, simultaneously. But that's not really the interesting part.
The interesting part is that the music isn't moved or imported into the US. It is copied there. And copying music in the US -- which means, given the definitions within the law, writing the music onto a hard drive, or into RAM, which is physically present in the US -- is infringing. In fact, it's infringing in such a way that the 602 importation exceptions don't apply (they only cover distribution, not copying, which is reproduction).
Also, importing the music into the US is illegal unless it was created in a manner that, if US law had applied in the place where it was made, it would have been legally made. Since AllOfMP3 claims to be using a Russian law that has no US equivalent, it would not have been legally made had US law applied there at that time. This makes it illegal to import under 602(b), regardless of whether 602(a) independently prohibits it or not.
And it's still not importation when you download anyway, so it's pretty moot.
There is no grey area. You aren't helping yourself, or others, by spreading misinformation. I don't care if you download music or not, but I care very much that people understand what copyright law actually says (rather than what misinformed people think it says) so that we can get them to support changing it to say something better.
(Also, copyright law is almost entirely statutory; common law copyright is virtually a nullity and not a good idea in any case. You're not shaping crap.)
No, you're wrong. You are not importing at all when you download. You are making a new copy. And making new copies is illegal.
The analogy I've come to like is that of a fax machine. When someone faxes you a document you end up with a second piece of paper that has the same information as the first. But the paper didn't itself cross the border while having that information printed on it. This is key, since the law defines a copy as a material object containing information, not as mere information by itself. Printing the fax (or storing it in memory) results in a new copy having been made in some tangible medium, and purely within the US, not importation of the original piece of paper that started out in the foreign country.
So no, people in the US cannot legally use AllOfMP3 unless you can find a law that allows you to make more copies. In 99.44% of cases that would involve using AllOfMP3, there is no such law.
And also, American law is not so accepting of actual imports as you seem to think it is. In fact, imports of works copyrighted in the US are all banned, with only a few exceptions.
First, as I've pointed out elsewhere, importation is a red herring. Downloading isn't importation at all, and so the 602(a)(2) exception doesn't cover it.
But second, you're misreading 602 terribly.
602(a) says that importation is infringing, but then says that certain types of importation are not infringing. It never says that they aren't importation at all! Only that they're not covered when it says that it's infringing generally (which makes them non-infringing importation). In fact, it even says that those forms of importation are importation (e.g. "importation, for the private use of the importer...").
So that doesn't prevent 602(b) from applying.
But furthermore, the exceptions in 602(a) say specifically that they only apply to that subsection, i.e. to 602(a). 602(b) is a totally different subsection, and therefore is not affected at all by anything that happens in 602(a).
This means that if an import is prohibited by 602(a) and 602(b), even if one of the 602(a) exceptions applies, 602(b) still prohibits the import.
Still, this is a purely academic discussion since downloading from AllOfMP3 is not importation to begin with, and so nothing in 602 matters one little bit. If you got sued, invoking 602 would not help you one bit and would harm your defense by diverting your legal resources to unhelpful nonsense.
Oh, it's not just a notion; courts have really said that downloading is infringing because copying necessarily occurs.
Sadly, people will continue to take risks and because they want to continue performing that risky activity, will go to great lengths to convince themselves they are safe.
Meh. If people want to engage in risky activity, that's fine, but they ought to have a clear idea as to the risks, rather than deluding themselves so as to have unfounded confidence.
I think that the way I was using the word "unsettled" must be different from how lawyers use it... to me, there are a lot of "maybe", "it depends", and "entirely case-by-case" parts in your post:)
What I'm trying to say is that how it would work is predictable, given a particular set of facts to start off with. If you have favorable facts, we can generally predict how the analysis will shake out, and it'll be in your favor. If you have crappy facts, then we can generally predict that too, but it won't be good for you.
Someone could have any kind of facts regarding their case -- are they engaged in transformative activity, does this negatively affect the market for the work, and if so, how (e.g. a bad review can still fairly use quotes even if it causes a work to flop) -- and that's where most of the uncertainty and prevarication come from. But fair use is deliberately vague, which allows us to adapt it to new situations and differing circumstances, but also causes courts to struggle with it sometimes, to disagree amongst themselves, and to change the general analysis in some cases. So that, and that lawyers like to cover our asses by pointing out that there's more than one possible outcome, is where you're seeing the prevarication and hedging coming from.
I think I'll stick to my opinion that copyright law needs a big overhaul.
And why do people who don't know the law insist on citing the wrong parts of it, and screwing that up to boot?
Section 602, at most, reduces the scope of the distribution right of copyright. It does not protect people who infringe in a different way, e.g. by making a new copy. A copy is defined in the law as a material object in which a work is fixed. RAM that an mp3 is loaded in is a copy. A hard drive that an mp3 is saved on is a copy. A download going through the Internet is not a copy, because there is no tangible object that was created at point A and which ends up being physically present at point B.
It's a lot like a fax machine. When you fax a paper document, the recipient ends up with a new copy of that document, not the original.
So 602 is totally inapplicable. This is copying. It's just like when you download from Napster, which the courts found to be illegal. This is illegal too, for just the same reason.
(Also you screwed it up, because even if this were importation, which it is not, 602(a)(2) does not protect you against 602(b), which would still be in play. You would have had to deal with both.)
What law makes it illegal for you to buy the music from Russia if you live in another country?
Actually, international trade is usually pretty heavily regulated. This scenario is no exception, and it's further complicated because of the precise events that go on and how copyright law treats them. It's not actually a case of importation at all; it's downloading, no different than if you had gotten it from Napster.
Merely posessing copyright infringing material is an offense in itself.
No, it's not. Mere possession is not infringing. It is illegal to download from that site, however, but for completely different reasons that I get into in some of my other posts in this article.
Like I said elsewhere, what I'm mainly opposed to is the misinformation regarding copyright issues (as well as bad copyright laws). I don't care much about AllOfMP3 or their users one way or the other, but it is important to me that people actually know the score, instead of trusting in the fairy tales that get spread around here all too often.
It's legal to buy it in this method in Russia, and it's legal to own it in the U.S.
That's great, but almost no one actually goes to Russia in order to buy it. Instead, they buy it while they're in the US. That the transaction is international doesn't put it under Russian law, it puts it simultaneously under both US and Russian law. Furthermore, copyright law prohibits making copies unlawfully in the US. Since copies are defined as material objects, and you're obviously not downloading actual, tangible hard drives over your connection, you aren't bringing copies (i.e. material objects) into the US. You're making copies in the US by putting the intangible work into material objects that are already here. This is illegal.
(Also it wouldn't be legal to import actual hard drives of music either since they're considered piratical copies under US law and thus their importation is considered infringing under 17 USC 602(b). They can be confiscated by Customs at the border, if they're on the ball enough to notice for a change. But this is neither here nor there.)
Making a new copy. As many courts in many cases (e.g. Napster, Grokster, Netcom) have pointed out, downloading copyrighted works without permission or an applicable exception in the law is infringing. Specifically that the downloader has necessarily, by the process of downloading, created a new copy, which is unlawful. Since copies are defined in the law as material objects, and material objects cannot be sent from one computer to another over a wire, downloading must be the creation of a new copy, in much the same way that when you fax a hardcopy document, the fax machine on the other end makes a printout which is not the same piece of paper as the original. Applicable statutes would include 17 USC 501, 106(1), and 101, for the cause of action, the right that is being infringed upon, and the important definition, respectively.
The law doesn't care that the overall conduct crosses the border. A downloader in the US is subject to US law and cannot be protected by Russian law for what he does while physically in the US. If you want to use the site, you had better actually travel to Russia.
The law doesn't care about the disposition of copies in Russia; what's illegal is making a new copy, regardless of whether another copy ends up getting deleted in the process. The actual numerical count doesn't matter.
The law doesn't care about whether or not you thought it was legal. Copyright law is a strict liability law; any violation, no matter what you did or didn't know, is infringing. The best you can hope for is a slight reduction in penalties.
The law doesn't treat this as importation (people invariably point to 602(a)(2), and are wrong to do so) because 1) that would require an actual copy (i.e. a material object) to physically cross the border, which is not what happens when you download, making the whole thing inapplicable 2) that would only protect against a distribution kind of infringement, not the reproduction kind of infringement, and 3) it's not good enough, since 602(b) would still apply and is not affected by the 602(a)(2) exception; you have to clear both hurdles.
So altogether, the responsibility of people in the US to abide by US law, which prohibits this downloading.
Frankly, I couldn't care less if people do this, and in fact I'd just as soon see noncommercial filesharing made completely legal. But I think it is really important for people to not be deluded as to what the current law actually is. If they don't understand it, or if they spread misinformation about it, then it'll be harder to get support for fixing it since people won't know just how bad things really are.
Basically, nowhere does the law even grant you the right to place a CD into your computer and suck it onto your MP3 player - yet no one has actually been sued for this.
Well, to be more precise, making a new copy -- such as an mp3 -- is prohibited. The argument is that in the case of ripping CDs to make mp3s, that it is a fair use. This is entirely possible, since any use can be a fair use, but OTOH, no use is automatically a fair use. It depends on the circumstances. In fact, the analysis (when conducted with generic facts) strongly comes out against it being a fair use, except for one element of the analysis, which is whether ripping would harm the current or future economic value of the work. When you're dealing with people who own CDs and who are ripping them for their personal use, there is likely no harm, and this has been argued to be enough to outweigh the rest of the analysis. Under different circumstances, such as someone who was ripping CDs as part of an overall course of action so that the mp3s would be a substitute for buying legitimate copies, it doesn't work out so well for them.
In any event, there has been at least one case dealing with this subject, but it's important to bear in mind that whether or not there have been suits doesn't really matter. Lack of precedent is not the same as precedent for either side of the issue. And plaintiffs are free to sue or not as they wish, in part according to how they wish to use their limited resources. So far it seems as though RIAA members don't care enough to sue, and have more important people to sue about more important issues. Perhaps someday in the future they'll sue rippers, bolstered by the existance of a digital music market which alters the analysis (since ripping can be seen to harm the value of the work sold via iTunes, for example).
In any event, it's not as unsettled as you think, and that particular issue has little to no bearing on a lot of others.
Wouldn't Apple be a major facilitator of copyright infringement in this case?
Yes. And they could get in trouble for it down the road, depending on how things go.
Why does iTunes let you sync more than one iPod to the same library? That's going way beyond established fair use rights, isn't it?
No, not really. And there's not really any such thing as 'established fair use rights' either. It's entirely a case-by-case issue. At best there are trends, but I wouldn't really count on it.
Also, I thought that Napster and Grokster were shut down because their whole business model was built around helping people infringe.
Grokster yes, Napster, less so.
It would be much harder to shut down Verizon for operating a BBS that people are also using to infringe, since not only is the BBS not Verizon's primary business model, but Verizon also does not even hint at the fact that their BBS can be used to propagate binary content.
Maybe. A lot depends on the circumstances, on what Verizon knows, when they know it, and what they do after they know. The idea of a business being based around infringement has more to do with vicarious and inducement theories, but not the contributory theory. Though the more that they derive a benefit from the infringement occurring, the more they have to do in order to avoid breaking the law.
Of course, the 512 safe harbors tend to cover most of this in such a way that it's all a lot easier for the ISPs, but they are required to do certain things in order to become and remain eligible. For example, I've seen ISPs required to take down entire newsgroups in order to comply with 512 (and thus to keep themselves from getting sued).
Though I don't think copyright is settled in the digital realm (everyone HAS to make a copy to use the media!)
It's settled in the US. Making those copies is illegal unless the work is not copyrighted, there is an applicable exception (e.g. 17 USC 107, 117) which depends largely on the circumstances, or there is an express or implicit license from the copyright holder. Since copyright is a strict liability statute, it doesn't matter whether you act reasonably or not; infringing, even purely unintentionally, where you acted reasonably so as to not infringe, is still infringement. And the minimum statutory damages in such a situation is $200 per work (which is down from $750 per work, which is the minimum if you can't prove you didn't know and shouldn't've known you were infringing). And if the copies of the work to which you had access bore a copyright notice, you can't go below $750.
It is also generally accepted that for message boards to be possible, screening cannot be compulsory.
Well, if someone aids in infringement (including by providing premises for it, such as flea markets, websites, etc.) then the person who helped is liable for the infringement as well as others if a case can be made against them for contributory infringement, vicarious infringement, or inducement. This is what happened to Napster, Grokster, etc.
You cannot expect Slashdot to review every post for infringement.
It depends on some other factors, but it's entirely possible to expect that, actually.
Currently it would be slightly tricky to sue you as you are technically buying the music, even if the legality of the site is questionable. More to the point, it would also attract adverse publicity, as you could quite reasonably use the defence that you were "trying to follow a legal route to obtain music".
In the US, the legality is clear cut (it's not legal for people in the US to download from AllOfMP3) and there's no such thing in our copyright law as a defense of 'I thought it was legal.' I doubt it would have any bearing on PR either; the industry already looks pretty bad.
See, owners of intellectual propery are charged with a responsibility called due diligence.
No they're not.
They are required to take reasonable action to protect their property, or they lose the ability to enforce their rights at all.
That's pretty incorrect. There are some estoppel arguments, I suppose, and with trademarks, the trademark will simply cease to exist if it can't function as a source identifier. But really, no one is required to litigate.
Copyright law is fine... well, actually, I would rather that it had been left the way that the Berne Convention had it about 20 years ago, and we should have spent our efforts understanding what it was, rather than changing it.
Feh. Berne is crap. It does a lot of awful things, such as eliminating formalities, causing terms to be very long, requiring certain classes of works to be copyrightable even though it is silly for them to be (e.g. architectural works), etc.
I'd rather we got rid of Berne and let each country choose whatever copyright laws it felt served its own people best, so long as they still offered national treatment unilaterally, and did avoid causing situations where copyrights in certain countries were exclusive of one another. Other than that, I see no good resulting from copyright treaties.
Hm. I may have misremembered. Still, it's of little benefit to the average gambler, and I can see a similar policy getting implemented for this type of video game income.
Actually, they did go after them in the 90's. But for political reasons, IIRC, they backed off slightly. Still, it's not as though they couldn't tax them if they really wanted to. They're certainly income for taxation purposes, they just may be specifically exempted.
I don't think so. Whether or not someone is subject to US law is a matter of US law. Ease of enforcement is not the same as whether the law is applicable. Determining whether or not US law applies is thus a matter that you generally have to go to the US courts to determine (though n.b. that it's entirely possible and common for courts to decide issues based on foreign laws). Still, it is not difficult to go to a US court, argue lack of personal jurisdiction, and win, resulting in the case getting dismissed there, without having gotten into the merits of the case. So no, not everyone is in effect subject. But no one is automatically not subject either; you do have to argue your case. And disagreeing is no risk, since it's clearly no good to just let there be a default judgment, as Spamhaus has shown us.
I disagree with your analysis. It's entirely possible to successfully argue that the case should be dismissed for lack of personal jurisdiction. Of course, jurisdictional arguments aren't guaranteed to win on their own merits. For example, the mere fact that Spamhaus is based in the UK isn't really relevant here; what's more interesting is if they work with entities in the US, how much they do this, etc. But in any event, if you don't follow the right procedure for bringing this issue up, you waive it, and so personal jurisdiction ends up existing for a certainty.
As for the courts, yes, they are entirely capable of deciding that a case doesn't belong there, dismissing it, and suggesting that the parties refile in a different court, possibly even in a different country. Happens all the time. But it takes the right kind of case, argued the right kind of way, to get to that point.
Just like a lawyer, trying to stamp out freedom of speech.
Yes, because we all know there aren't any lawyers that support the freedom of speech, e.g. the ACLU, the EFF, etc.
What the company e360 is trying to do is morally wrong, and if there were any justice in the world, should be illegal to attempt.
Then it would be great if Spamhaus would at least go to the court and argue this. But if they ignore it, and the court only hears one side of the story, how will it know otherwise?
Any lawyer who would take the case would also appear to be morally corrupt.
Any lawyer who would defend the stance, whether legal or not, would again appear to be morally corrupt.
Well that's just idiotic. That's like saying that a doctor who operated on a serial killer to save the killer's life is just as bad as the killer. Lawyers provide legal representation, and everyone deserves the right to rely on the laws, to seek redress in the legal system, and to have the assistance of counsel in order to do it. To deny this would be patently unjust; the deck would be unfairly stacked against them. This doesn't mean that any given conduct has to be legal, but that the system for determining whether a law was broken or not has to be fair to both sides. I'd also point out that there's no way for the courts to be able to tell when a case is as bad as you think it is without actually hearing it first, so your silly idea would basically be prejudice from the get go -- assuming that anyone who is accused of being a spammer is, and therefore doesn't deserve the chance to prove that he's not or to seek damages if he's been falsely accused. You'd have to be a moron to not see the massive problems here.
Since I'm typing, the proper usage would have been "keep your hands of the keyboard", but I can understand where that might be over your head.
Literal-minded much?
When wrongs are defended by legalities, isn't it time to change the legal system?
Depends on what you mean, but knock yourself out trying. (In fact, you can take that literally, as is your wont)
This is disputed by the other side, and in any event, the word business is used rather loosely here, and would not necessarily exclude nonprofits. Spamhaus could certainly have argued this, but instead they seem to have dropped the ball altogether, and now it's probably too late. Certainly there's no reason for the court to assume this if the only party bothering to give them any facts is the plaintiff. It's up to the defendant to make the counter-argument.
Slashdot Mirror
They would sue them for copyright infringement. And they would be able to have the files deleted, get a judgment for as much as $150,000 per work infringed (which could easily get up into the hundreds of millions for a typical downloader), and, with a bit of luck, get the defendant to have to pay the lawyer's fees and costs, and if they're very nasty (and a bit luckier still) get his computer equipment destroyed so that he can't use it that way again.
You should take a look through 17 USC 502-505. There's some fun stuff in there.
As for grounds for a civil action, that's 17 USC 501 and 106(1). Pretty open and shut, too, if you can identify the downloader.
The downloader is in the US. And unauthorized downloading of copyrighted works is illegal here (see, e.g. the Napster case, or Grokster, or Netcom, or my personal favorite, Intellectual Reserve v. Utah Lighthouse Ministry). The location of the uploader is totally irrelevant to whether or not the downloader is breaking the law.
You're right though, in there's no treaties or anything that are at issue. This is purely a matter of our domestic law.
Whether or not this rises to the level of criminal copyright infringement will depend on just what the infringer's been doing. But as I've pointed out elsewhere, a downloader in the US has to comply with US laws, and our laws (in particular 17 USC 501 and 106(1); n.b. that 106(3) and 602 are not applicable in this case) prohibit this sort of downloading. For it to be criminal, you'd have to look at 17 USC 506, 106(1), and 18 USC 2319. Otherwise it's illegal, but only a civil offense, rather than both a civil and criminal offense.
Whether or not AllOfMP3 is violating any Russian laws, I can't say. I'm not familiar with their laws. I'm a US copyright lawyer, though, and I'm pretty well-versed in ours.
Yes, you do. The difference is, AllofMP3 isn't selling in the US. Instead, the purchaser is going to Russia. Then they perform a transaction in Russia, and the purchaser returns to the US with his purchased music. Now, is importing music you legally purchased in a foreign country illegal in the US? No, it's not.
No, the transaction occurs in both the US and Russia, simultaneously. But that's not really the interesting part.
The interesting part is that the music isn't moved or imported into the US. It is copied there. And copying music in the US -- which means, given the definitions within the law, writing the music onto a hard drive, or into RAM, which is physically present in the US -- is infringing. In fact, it's infringing in such a way that the 602 importation exceptions don't apply (they only cover distribution, not copying, which is reproduction).
Also, importing the music into the US is illegal unless it was created in a manner that, if US law had applied in the place where it was made, it would have been legally made. Since AllOfMP3 claims to be using a Russian law that has no US equivalent, it would not have been legally made had US law applied there at that time. This makes it illegal to import under 602(b), regardless of whether 602(a) independently prohibits it or not.
And it's still not importation when you download anyway, so it's pretty moot.
There is no grey area. You aren't helping yourself, or others, by spreading misinformation. I don't care if you download music or not, but I care very much that people understand what copyright law actually says (rather than what misinformed people think it says) so that we can get them to support changing it to say something better.
(Also, copyright law is almost entirely statutory; common law copyright is virtually a nullity and not a good idea in any case. You're not shaping crap.)
No, you're wrong. You are not importing at all when you download. You are making a new copy. And making new copies is illegal.
The analogy I've come to like is that of a fax machine. When someone faxes you a document you end up with a second piece of paper that has the same information as the first. But the paper didn't itself cross the border while having that information printed on it. This is key, since the law defines a copy as a material object containing information, not as mere information by itself. Printing the fax (or storing it in memory) results in a new copy having been made in some tangible medium, and purely within the US, not importation of the original piece of paper that started out in the foreign country.
So no, people in the US cannot legally use AllOfMP3 unless you can find a law that allows you to make more copies. In 99.44% of cases that would involve using AllOfMP3, there is no such law.
And also, American law is not so accepting of actual imports as you seem to think it is. In fact, imports of works copyrighted in the US are all banned, with only a few exceptions.
Sorry, but no.
First, as I've pointed out elsewhere, importation is a red herring. Downloading isn't importation at all, and so the 602(a)(2) exception doesn't cover it.
But second, you're misreading 602 terribly.
602(a) says that importation is infringing, but then says that certain types of importation are not infringing. It never says that they aren't importation at all! Only that they're not covered when it says that it's infringing generally (which makes them non-infringing importation). In fact, it even says that those forms of importation are importation (e.g. "importation, for the private use of the importer...").
So that doesn't prevent 602(b) from applying.
But furthermore, the exceptions in 602(a) say specifically that they only apply to that subsection, i.e. to 602(a). 602(b) is a totally different subsection, and therefore is not affected at all by anything that happens in 602(a).
This means that if an import is prohibited by 602(a) and 602(b), even if one of the 602(a) exceptions applies, 602(b) still prohibits the import.
Still, this is a purely academic discussion since downloading from AllOfMP3 is not importation to begin with, and so nothing in 602 matters one little bit. If you got sued, invoking 602 would not help you one bit and would harm your defense by diverting your legal resources to unhelpful nonsense.
Oh, it's not just a notion; courts have really said that downloading is infringing because copying necessarily occurs.
Sadly, people will continue to take risks and because they want to continue performing that risky activity, will go to great lengths to convince themselves they are safe.
Meh. If people want to engage in risky activity, that's fine, but they ought to have a clear idea as to the risks, rather than deluding themselves so as to have unfounded confidence.
I think that the way I was using the word "unsettled" must be different from how lawyers use it... to me, there are a lot of "maybe", "it depends", and "entirely case-by-case" parts in your post :)
What I'm trying to say is that how it would work is predictable, given a particular set of facts to start off with. If you have favorable facts, we can generally predict how the analysis will shake out, and it'll be in your favor. If you have crappy facts, then we can generally predict that too, but it won't be good for you.
Someone could have any kind of facts regarding their case -- are they engaged in transformative activity, does this negatively affect the market for the work, and if so, how (e.g. a bad review can still fairly use quotes even if it causes a work to flop) -- and that's where most of the uncertainty and prevarication come from. But fair use is deliberately vague, which allows us to adapt it to new situations and differing circumstances, but also causes courts to struggle with it sometimes, to disagree amongst themselves, and to change the general analysis in some cases. So that, and that lawyers like to cover our asses by pointing out that there's more than one possible outcome, is where you're seeing the prevarication and hedging coming from.
I think I'll stick to my opinion that copyright law needs a big overhaul.
I completely agree.
And why do people who don't know the law insist on citing the wrong parts of it, and screwing that up to boot?
Section 602, at most, reduces the scope of the distribution right of copyright. It does not protect people who infringe in a different way, e.g. by making a new copy. A copy is defined in the law as a material object in which a work is fixed. RAM that an mp3 is loaded in is a copy. A hard drive that an mp3 is saved on is a copy. A download going through the Internet is not a copy, because there is no tangible object that was created at point A and which ends up being physically present at point B.
It's a lot like a fax machine. When you fax a paper document, the recipient ends up with a new copy of that document, not the original.
So 602 is totally inapplicable. This is copying. It's just like when you download from Napster, which the courts found to be illegal. This is illegal too, for just the same reason.
(Also you screwed it up, because even if this were importation, which it is not, 602(a)(2) does not protect you against 602(b), which would still be in play. You would have had to deal with both.)
What law makes it illegal for you to buy the music from Russia if you live in another country?
Actually, international trade is usually pretty heavily regulated. This scenario is no exception, and it's further complicated because of the precise events that go on and how copyright law treats them. It's not actually a case of importation at all; it's downloading, no different than if you had gotten it from Napster.
Merely posessing copyright infringing material is an offense in itself.
No, it's not. Mere possession is not infringing. It is illegal to download from that site, however, but for completely different reasons that I get into in some of my other posts in this article.
Like I said elsewhere, what I'm mainly opposed to is the misinformation regarding copyright issues (as well as bad copyright laws). I don't care much about AllOfMP3 or their users one way or the other, but it is important to me that people actually know the score, instead of trusting in the fairy tales that get spread around here all too often.
It's legal to buy it in this method in Russia, and it's legal to own it in the U.S.
That's great, but almost no one actually goes to Russia in order to buy it. Instead, they buy it while they're in the US. That the transaction is international doesn't put it under Russian law, it puts it simultaneously under both US and Russian law. Furthermore, copyright law prohibits making copies unlawfully in the US. Since copies are defined as material objects, and you're obviously not downloading actual, tangible hard drives over your connection, you aren't bringing copies (i.e. material objects) into the US. You're making copies in the US by putting the intangible work into material objects that are already here. This is illegal.
(Also it wouldn't be legal to import actual hard drives of music either since they're considered piratical copies under US law and thus their importation is considered infringing under 17 USC 602(b). They can be confiscated by Customs at the border, if they're on the ball enough to notice for a change. But this is neither here nor there.)
What responsability?
Making a new copy. As many courts in many cases (e.g. Napster, Grokster, Netcom) have pointed out, downloading copyrighted works without permission or an applicable exception in the law is infringing. Specifically that the downloader has necessarily, by the process of downloading, created a new copy, which is unlawful. Since copies are defined in the law as material objects, and material objects cannot be sent from one computer to another over a wire, downloading must be the creation of a new copy, in much the same way that when you fax a hardcopy document, the fax machine on the other end makes a printout which is not the same piece of paper as the original. Applicable statutes would include 17 USC 501, 106(1), and 101, for the cause of action, the right that is being infringed upon, and the important definition, respectively.
The law doesn't care that the overall conduct crosses the border. A downloader in the US is subject to US law and cannot be protected by Russian law for what he does while physically in the US. If you want to use the site, you had better actually travel to Russia.
The law doesn't care about the disposition of copies in Russia; what's illegal is making a new copy, regardless of whether another copy ends up getting deleted in the process. The actual numerical count doesn't matter.
The law doesn't care about whether or not you thought it was legal. Copyright law is a strict liability law; any violation, no matter what you did or didn't know, is infringing. The best you can hope for is a slight reduction in penalties.
The law doesn't treat this as importation (people invariably point to 602(a)(2), and are wrong to do so) because 1) that would require an actual copy (i.e. a material object) to physically cross the border, which is not what happens when you download, making the whole thing inapplicable 2) that would only protect against a distribution kind of infringement, not the reproduction kind of infringement, and 3) it's not good enough, since 602(b) would still apply and is not affected by the 602(a)(2) exception; you have to clear both hurdles.
So altogether, the responsibility of people in the US to abide by US law, which prohibits this downloading.
Frankly, I couldn't care less if people do this, and in fact I'd just as soon see noncommercial filesharing made completely legal. But I think it is really important for people to not be deluded as to what the current law actually is. If they don't understand it, or if they spread misinformation about it, then it'll be harder to get support for fixing it since people won't know just how bad things really are.
Basically, nowhere does the law even grant you the right to place a CD into your computer and suck it onto your MP3 player - yet no one has actually been sued for this.
Well, to be more precise, making a new copy -- such as an mp3 -- is prohibited. The argument is that in the case of ripping CDs to make mp3s, that it is a fair use. This is entirely possible, since any use can be a fair use, but OTOH, no use is automatically a fair use. It depends on the circumstances. In fact, the analysis (when conducted with generic facts) strongly comes out against it being a fair use, except for one element of the analysis, which is whether ripping would harm the current or future economic value of the work. When you're dealing with people who own CDs and who are ripping them for their personal use, there is likely no harm, and this has been argued to be enough to outweigh the rest of the analysis. Under different circumstances, such as someone who was ripping CDs as part of an overall course of action so that the mp3s would be a substitute for buying legitimate copies, it doesn't work out so well for them.
In any event, there has been at least one case dealing with this subject, but it's important to bear in mind that whether or not there have been suits doesn't really matter. Lack of precedent is not the same as precedent for either side of the issue. And plaintiffs are free to sue or not as they wish, in part according to how they wish to use their limited resources. So far it seems as though RIAA members don't care enough to sue, and have more important people to sue about more important issues. Perhaps someday in the future they'll sue rippers, bolstered by the existance of a digital music market which alters the analysis (since ripping can be seen to harm the value of the work sold via iTunes, for example).
In any event, it's not as unsettled as you think, and that particular issue has little to no bearing on a lot of others.
Wouldn't Apple be a major facilitator of copyright infringement in this case?
Yes. And they could get in trouble for it down the road, depending on how things go.
Why does iTunes let you sync more than one iPod to the same library? That's going way beyond established fair use rights, isn't it?
No, not really. And there's not really any such thing as 'established fair use rights' either. It's entirely a case-by-case issue. At best there are trends, but I wouldn't really count on it.
Also, I thought that Napster and Grokster were shut down because their whole business model was built around helping people infringe.
Grokster yes, Napster, less so.
It would be much harder to shut down Verizon for operating a BBS that people are also using to infringe, since not only is the BBS not Verizon's primary business model, but Verizon also does not even hint at the fact that their BBS can be used to propagate binary content.
Maybe. A lot depends on the circumstances, on what Verizon knows, when they know it, and what they do after they know. The idea of a business being based around infringement has more to do with vicarious and inducement theories, but not the contributory theory. Though the more that they derive a benefit from the infringement occurring, the more they have to do in order to avoid breaking the law.
Of course, the 512 safe harbors tend to cover most of this in such a way that it's all a lot easier for the ISPs, but they are required to do certain things in order to become and remain eligible. For example, I've seen ISPs required to take down entire newsgroups in order to comply with 512 (and thus to keep themselves from getting sued).
Though I don't think copyright is settled in the digital realm (everyone HAS to make a copy to use the media!)
It's settled in the US. Making those copies is illegal unless the work is not copyrighted, there is an applicable exception (e.g. 17 USC 107, 117) which depends largely on the circumstances, or there is an express or implicit license from the copyright holder. Since copyright is a strict liability statute, it doesn't matter whether you act reasonably or not; infringing, even purely unintentionally, where you acted reasonably so as to not infringe, is still infringement. And the minimum statutory damages in such a situation is $200 per work (which is down from $750 per work, which is the minimum if you can't prove you didn't know and shouldn't've known you were infringing). And if the copies of the work to which you had access bore a copyright notice, you can't go below $750.
It is also generally accepted that for message boards to be possible, screening cannot be compulsory.
Well, if someone aids in infringement (including by providing premises for it, such as flea markets, websites, etc.) then the person who helped is liable for the infringement as well as others if a case can be made against them for contributory infringement, vicarious infringement, or inducement. This is what happened to Napster, Grokster, etc.
You cannot expect Slashdot to review every post for infringement.
It depends on some other factors, but it's entirely possible to expect that, actually.
Currently it would be slightly tricky to sue you as you are technically buying the music, even if the legality of the site is questionable. More to the point, it would also attract adverse publicity, as you could quite reasonably use the defence that you were "trying to follow a legal route to obtain music".
In the US, the legality is clear cut (it's not legal for people in the US to download from AllOfMP3) and there's no such thing in our copyright law as a defense of 'I thought it was legal.' I doubt it would have any bearing on PR either; the industry already looks pretty bad.
See, owners of intellectual propery are charged with a responsibility called due diligence.
No they're not.
They are required to take reasonable action to protect their property, or they lose the ability to enforce their rights at all.
That's pretty incorrect. There are some estoppel arguments, I suppose, and with trademarks, the trademark will simply cease to exist if it can't function as a source identifier. But really, no one is required to litigate.
Copyright law is fine ... well, actually, I would rather that it had been left the way that the Berne Convention had it about 20 years ago, and we should have spent our efforts understanding what it was, rather than changing it.
Feh. Berne is crap. It does a lot of awful things, such as eliminating formalities, causing terms to be very long, requiring certain classes of works to be copyrightable even though it is silly for them to be (e.g. architectural works), etc.
I'd rather we got rid of Berne and let each country choose whatever copyright laws it felt served its own people best, so long as they still offered national treatment unilaterally, and did avoid causing situations where copyrights in certain countries were exclusive of one another. Other than that, I see no good resulting from copyright treaties.
Hm. I may have misremembered. Still, it's of little benefit to the average gambler, and I can see a similar policy getting implemented for this type of video game income.
Actually, they did go after them in the 90's. But for political reasons, IIRC, they backed off slightly. Still, it's not as though they couldn't tax them if they really wanted to. They're certainly income for taxation purposes, they just may be specifically exempted.
Nice try, but the gamblers tried that with their lottery tickets, etc. and they were not successful.
I don't think so. Whether or not someone is subject to US law is a matter of US law. Ease of enforcement is not the same as whether the law is applicable. Determining whether or not US law applies is thus a matter that you generally have to go to the US courts to determine (though n.b. that it's entirely possible and common for courts to decide issues based on foreign laws). Still, it is not difficult to go to a US court, argue lack of personal jurisdiction, and win, resulting in the case getting dismissed there, without having gotten into the merits of the case. So no, not everyone is in effect subject. But no one is automatically not subject either; you do have to argue your case. And disagreeing is no risk, since it's clearly no good to just let there be a default judgment, as Spamhaus has shown us.
I disagree with your analysis. It's entirely possible to successfully argue that the case should be dismissed for lack of personal jurisdiction. Of course, jurisdictional arguments aren't guaranteed to win on their own merits. For example, the mere fact that Spamhaus is based in the UK isn't really relevant here; what's more interesting is if they work with entities in the US, how much they do this, etc. But in any event, if you don't follow the right procedure for bringing this issue up, you waive it, and so personal jurisdiction ends up existing for a certainty.
As for the courts, yes, they are entirely capable of deciding that a case doesn't belong there, dismissing it, and suggesting that the parties refile in a different court, possibly even in a different country. Happens all the time. But it takes the right kind of case, argued the right kind of way, to get to that point.
Just like a lawyer, trying to stamp out freedom of speech.
Yes, because we all know there aren't any lawyers that support the freedom of speech, e.g. the ACLU, the EFF, etc.
What the company e360 is trying to do is morally wrong, and if there were any justice in the world, should be illegal to attempt.
Then it would be great if Spamhaus would at least go to the court and argue this. But if they ignore it, and the court only hears one side of the story, how will it know otherwise?
Any lawyer who would take the case would also appear to be morally corrupt.
Any lawyer who would defend the stance, whether legal or not, would again appear to be morally corrupt.
Well that's just idiotic. That's like saying that a doctor who operated on a serial killer to save the killer's life is just as bad as the killer. Lawyers provide legal representation, and everyone deserves the right to rely on the laws, to seek redress in the legal system, and to have the assistance of counsel in order to do it. To deny this would be patently unjust; the deck would be unfairly stacked against them. This doesn't mean that any given conduct has to be legal, but that the system for determining whether a law was broken or not has to be fair to both sides. I'd also point out that there's no way for the courts to be able to tell when a case is as bad as you think it is without actually hearing it first, so your silly idea would basically be prejudice from the get go -- assuming that anyone who is accused of being a spammer is, and therefore doesn't deserve the chance to prove that he's not or to seek damages if he's been falsely accused. You'd have to be a moron to not see the massive problems here.
Since I'm typing, the proper usage would have been "keep your hands of the keyboard", but I can understand where that might be over your head.
Literal-minded much?
When wrongs are defended by legalities, isn't it time to change the legal system?
Depends on what you mean, but knock yourself out trying. (In fact, you can take that literally, as is your wont)
Aye but they don't conduct BUSINESS in the US.
They are a non profit organization - get it?
This is disputed by the other side, and in any event, the word business is used rather loosely here, and would not necessarily exclude nonprofits. Spamhaus could certainly have argued this, but instead they seem to have dropped the ball altogether, and now it's probably too late. Certainly there's no reason for the court to assume this if the only party bothering to give them any facts is the plaintiff. It's up to the defendant to make the counter-argument.