So the people who create laws shouldn't be professionals who have experience working with the laws, and who have recieved years of specialized legal training?
Perhaps you would like to suggest that doctors ought not be allowed to practice medicine, and computer scientists should be banned from writing software?
Law is complex because we live in a complex world, with a complex society, and complex desires for what the law is to do. A simple law is something like 'an eye for an eye' but that's not a good law. Don't knock complexity. If that's the worst thing about the law, then you're doing pretty good. If it's not, then you have higher priorities.
This is in part because the USA is far too litigious and they know that if they answer a question that is true 999.999 times out of 1 million, the 1 in a million guy who is an exception will sue them for not being right in his particular case.
Meh. I'd say it has more to do with a desire (and a duty) to be accurate. This means that where there are two possible outcomes, even if one is much more likely than the other, you can't just discount one of them and ignore it.
The funny thing is, my friend has told me that lawyers like the law to be clear cut and not vague. He has stressed that lawyers hate vagueness.
I'd say it depends. It's often quite useful, since the law needs to be flexible. I have no problem with a certain degree of vagueness, if it's in the right place, in the right way.
Remember, President Clinton was a lawyer, which is why he was able to come up with the incredible "That depends on what the meaning of the word 'is' is" defense.
And that was a valid argument he made, if a thin one. He said 'There is no sexual relationship with her,' which is correct, if by 'is' you mean 'is presently' (since he had ended the relationship previously) as opposed to 'is or was.' Programmers work with languages in which things must be described precisely. So do lawyers, except that the languages in which we must be precise are the ordinary languages that everyone uses, often in quite imprecise ways. Legalese is just a side effect of trying to be precise.
Actually, I would hazard a guess that he meant that there is no exclusive right to listen, or that there is no right to listen that trumps other provisions of copyright or contract law. And that's all correct.
This also means that a lot of your silly post is bunk. If there's no exclusive right to listen, then the copyright holder can't give you one.
As it happens, your right to listen to a CD derives from the inherent right of free speech, which copyright is a limitation on, though copyright doesn't touch on the subject of mere listening, so there's no applicable limitation. And property rights held by the owner of the CD. Listening is no different, really, from the right to use the CD as a frisbee.
As for fair use, it's never something you should rely on. Anything can be a fair use, but just as easily can not be a fair use. It depends, and it'll be different from one case to another. Sometimes making a copy of a CD will be a fair use, other times it won't be. It depends.
All in all, I'd say that he knew what was going on, and that you're the clueless one.
The RIAA has claimed that people who buy a CD are not buying a physical object, but a license to listen to the music.
Show me. I've never heard anyone suggest that, except for people who foolishly think that licensing is common or desirable at the consumer level. It's a dumb idea for software, and it's a dumb idea elsewhere too. Fortunately, software is about the only field stupid enough to employ licensing on a wide scale. It's a bad idea, and we really ought to prohibit it.
The answer is that in normal cases, if you buy a CD, it's no different than if you buy a comb. You can use both in any lawful fashion you like. Since no law prohibits listening, listen away. There are laws about making more copies, OTOH.
I still want to know if I download a song "unlawfully" and burn it to a taxed Music CD, then rip it back onto my hard drive, is that copy now legal? ARHA seems to imply so, as would buying a cd and making multiple copies for my immediate family and friends, as long as they were on a taxed Music CD.
I think you're misinterpreting the AHRA.
Downloading the song onto an AHRA medium without anything between the wire and the medium which could itself be a medium (e.g. a computer's RAM or hard drive) would be quite tricky. Probably you'd need to build an AHRA-compliant device to do this, which means implementing SCMS, etc.
Also, AHRA only protects you from making a copy pursuant to the statute. It does not shelter you in upstream or downstream activities. So if you have an AHRA-compliant copy, you can't rip it to a computer under the AHRA. You'd need something else, which in practice is fair use. But the fair use analysis is not good. Likewise, distributing AHRA-compliant copies to others is not covered under AHRA, nor first sale, and fair use remains unlikely to help.
Copyright is very simple; only the copyright owner has the RIGHT to make copies of the work. That's all it says.
It actually covers a lot more than that. And it never says that copyright holders have the right to make copies. It says that they have the exclusive right to make copies, i.e. the right to exclude others from making copies. If it would otherwise be illegal to make the copies (because they are libelous, or child porn, or something) then copyright won't alter that.
Patents work the same way -- they're a right to stop other people from using the invention, but not a right to use it yourself.
Copyright has nothing to do with whether potentially infringing actions are easy or hard. It's irrelevant.
Copyright applies to ideasphysical items don't need copyright
And yet, plenty of tangible works are copyrighted, from sculptures to architectural works. And you don't need a replicator to make copies of them, by the way.
That's because that's not fair use. That's a provision that deals with libraries. It's useless for pretty much everyone else.
Fair use is at 17 USC 107. It doesn't mention backups at all. It is possible that a backup might fall under the four-factor fair use analysis, but it is also possible that it would not. It depends on the circumstances of the specific backup. There is no general rule.
You can make as many copies of a legitimately purchased work as you like for your own personal use. You cannot distribute them, or lend them out or give them away - you may only lend or re-sell the orginal. If you re-sell the original, then you must destroy all copies you made for your own personal use. The law varies slightly in some places, for some works, but that is the general idea.
For example, in the US, that's only true for software, and even then, only very rarely. Nothing else.
In fact, with music, you actually have an extra *statutory* right -- the right to make a backup.
I know what you're thinking of, but that's not correct in several respects.
There has never been a fair use right for any copyrighted material that worked that way.
Well, anything could potentially be a fair use. I'd suggest running through the analysis. But it'll mostly hinge on the first and fourth factors.
Unfortunately, I suspect that the idea of a license to copyrighted works -- particularly the way licenses are used with software -- has kind of screwed up people's understanding of copyrights.
In this case, the owner seems to have the right to make a copy of the work for personal use, but where does this right come from?
I'd say that fair use or an implied license are the likely sources. And that's assuming that it's not just de minimis. Of course, with a lack of litigation on the matter, we'll probably never know for sure.
If the right comes from the fair use right to make a backup copy of a work, then is it legal that the backup is the work being played, and not the original CD?
There is no blanket fair use right for anything. Anything can or cannot be a fair use, depending on the circumstances. It might be okay for Alice to rip a CD but not for Bob to do so, depending on the facts regarding each. So don't assume that there's "a fair use right to make a backup copy" because there's no such thing. Each use, by each user, must be considered independently.
Yes, it's easier to initiate a suit, and it's easier to show enough proof to win a suit, but the plaintiff still has to do it. He can't just accuse someone, fail to show any evidence, and require the defendant to defend himself.
And also, implications are not good enough. To file a suit you need to certify "that to the best of the [attorney's] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." You don't just file these things at will.
And to win, you need to prove your case by a preponderance of the evidence. That is to say, the court must believe that you are more likely than not correct, based on the evidence they consider and the weights they assign the evidence.
Copyright protects creative works. It does not protect ideas, processes, methods, etc. Most works are a mixture of creative expressions and underlying ideas; the expression is copyrighted, the ideas are not. So while copyright doesn't allow you to copy a program so you can sell copies of it, it does allow you to figure out how it works and write a new program that works in an identical fashion. The implementation is what's creative, not the underlying workings.
With a piece of music, while you could certainly use the musical ideas present (e.g. changes in tempo, or whatnot), you can't copy the implementation, which in this case would be the actual piece of music.
Losing ten thousand potential customers can be a sizeable chunk of the market the copyright holder could possibly reach.
I know, but I think that the public benefits outweigh the public detriments. Fewer works created and published can be compensated for by greater freedom with regard to those works. The point is not to help copyright holders, but to help the public. Doing this might incidentally involve helping copyright holders, but only as a means to an end. C.f. setting up a public transit system might harm cabbies, but if it's still better for the people of the area when all is accounted for, it's the right thing to do.
Also such copies should only be legal to make of a copy that was approved by the rights holder (to prevent "viral" spreading of a work), although you are only liable if you can be reasonably expected to know that the copy you used was not approved.
Well that's just insipid. Rightsholders can already authorize any damn thing that they want. An exception is a limit on their ability to prevent people from doing things.
Though I think "reasonably expected to know" is a basic requirement
You're basically saying you want a negligence standard.
This would still outlaw sharing over P2P or Warez sites but why exactly should that be legal anyway?
The correct questions are why should we have copyright at all? And if so, precisely how much? I think that copyright is a good idea, but only to a point. That point is the point of maximum public benefit. Encouraging creation and publication of original works is one kind of public benefit, but only one kind. Of equal importance are encouraging the creation and publication of derivatives, and in having no, or minimal copyright, in both term length and scope. Also, copyright should not fight the public norms; it's just not important enough. Copyright is like Prohibition, not Civil Rights.
Well, sure, that would create the broadest license
No, it would not create a license at all. It would reduce the scope of copyright. To the extent that you were engaged in a use that fell under the exception, no copyright would exist at all. A license can only exist where a copyright exists and is applicable.
but that would also greatly reduce the commercial viability of many products that are sold for noncommercial use, and discourage their production
Maybe, but I'm not confident that that's true. Furthermore, would the benefits to the public of such a broad exception outweigh the detriment of whatever lessened creation and publication occurred. Honestly, I suspect that it would. It also has the benefit of bringing copyright law into line with social norms, rather than trying to fight them. Given that the law is meant to serve the public, rather than artists or publishers specifically, adhering to these norms is a good idea. I don't like it when laws are flagrantly broken, but unless the law is really important (and copyright is not) the solution is to stop having that law or to make it more tolerable to people, not to fight them.
Because the fair use exception is particularly important, particularly in noncommercial contexts, because of its connection to 1st Amendment rights.
No, all the exceptions establish limits on copyright. In the absence of applicable copyright in those areas, all that remains are the First Amendment rights of the users to do as they like. Fair use is a catch-all, but it's no more or less important than, say, the 110 exceptions.
Which is why already certain noncommercial infringers are already protected this way for innocent infringement that is reasonably, though wrongly, believed to be fair use
No, they are not. Innocent infringement applies regardless of why the infringer reasonably thought that he was not infringing. It isn't limited to attempted fair use only.
I know, and it's great for the purposes of computing statutory damages, but it does nothing for the elements of the offense to begin with. An innocent infringer is still an infringer, and still liable for his infringement. He's not innocent at all, he just wasn't even negligent. It's not the best piece of terminology.
No, I'd rather just have a blanket exception: if you're a natural person, and you're acting noncommercially, you're not infringing, whatever you're doing, and whatever your mental state is. Copyright would only be a factor in commercial matters, or for organizations, corporations, etc.
I'm ambivalent about adding mens rea to copyright, since it would seem to encourage people to be deliberately ignorant of the copyright status of works, so that they could get away with things.
Also your third exception is all tangled up. Commercial fair use is possible, commonplace, and still entirely fair, so why treat it differently? And why only invoke fair use, when there are a whole panoply of exceptions to copyright other than fair use? First sale is an entirely different creature than fair use, so why wouldn't it protect people who think they're sheltered by that doctrine?
The user receives octet stream the server sends, and saves it to file. That's not illegal; it's the part analogous to when you are handed an unauthorised copy of a book by the unscrupulous book seller.
I'm afraid not. Copyright law makes it infringement to make copies unauthorizedly. Copies are defined as being material objects in which the intangible work is fixed. So a story is not a copy; a paperback containing that story is. Likewise, a file is not a copy, but the RAM or hard drive or other computer media where the file is stored is the copy, since that's the material object. And we can't move material objects over a wire just yet. This means that whatever copying might be occurring on the server side, those copies can't reach the downloader, and he must make his own.
So let's reconsider what's happening? The information gets sent along the wire. But when the requesting party receives it, he fixes it, probably more than once, into various media. He is making copies. It is not like being given a book. It is like using a notepad to write down what the person on the other end of the telephone is saying to you. Who is liable for making these copies? Courts have said it is the person who causes these events to occur. This means the downloader, since the acts being taken by the other computer are in response to his request. They didn't happen automatically, whether he liked it or not. The other guy is in trouble too, but that won't get the downloader off the hook.
Every case that's looked at this, Netcom, Napster, Marobie, Utah Lighthouse, etc. has found downloaders to be liable for infringement based on copying.
My OSX Mac is a laptop, actually, and I use page up and down keys to scroll mostly. But your suggestion is not a solution. Using the standard scrollbar in iTunes, or at least exactly mimicing its behavior, is the actual solution.
Yes, it's silly and oft-criticized, but it'd probably be better to create some broad exceptions that acknowledge how computers work with regard to all kinds of works. And nothing as limited as 117. And some broad exceptions for ordinary people acting noncommercially would also be good.
No, it's true. In fact, they're even citing the right statute:
Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122... is an infringer of the copyright....
17 USC 501(a).
I don't see a mens rea element there.
Contrast with a civil remedy for computer intrusion:
Any... person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.
Firstoff, digitizing an embroidery design is itself a creative work, much like creating a good translation of text from English to Japanese. As such, copyright protection is appropriate.
That's only one hurdle. We also must consider whether copyrights for such patterns will produce a net benefit to the public. We must consider how many designs would be created and published without copyright, and whether any copyright would result in more creation and publication, and if so, whether it would be enough to benefit the public more than they would be harmed by the existance of the relevant copyrights. (This is because the public benefits from having original works created and published, from having derivative works created and published, and having no or minimal copyrights on those works so that everyone is free to use the works as they like. Encouraging one at the expense of another isn't good unless the net result is better for the public, and all three are ultimately satisfied anyway)
I would imagine that some amount of protection might be appropriate, though I'd want to see some hard numbers first. But it probably ought to be a fairly minimal amount of protection. I don't expect that embroiders are significantly incentivized to create and publish patterns because of copyright-related potential revenue. Other incentives might be stronger, and I'm fully prepared to let artists create and not get copyrights if they're going to create anyway. Why pay for the cow when you can get the milk for free, after all?
No, they're correct. Copyright is a strict liability statute, like, oh, statutory rape. If you do it, you've broken the law, regardless of whether you intended to or not, or how cautious and reasonable you were in your attempts to avoid breaking the law. Mental state is not a factor.
It can be useful in reducing statutory damages, and it makes you fairly sympathetic, as if grannies that embroider aren't already, but it does not get you off the hook.
Patents work the same way. What protects ordinary people is that generally no one is interested in going after them. It's not economically worthwhile or anything.
But there is no way that just looking at a copyrighted data file, assuming that's all that's being done here, by a person who happened to purchase a copy from a person who didn't have the rights to distribute it, could possibly be in violation of copyright law.
Yes, that's absolutely correct, except that it's completely wrong, sorry:
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 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.
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).
Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) (emphasis added).
Computers make copies all the time in their normal operations. It's the way they're built. Unfortunately, this means that it's trivially easy to infringe using a computer, as opposed to by other means. If dear old grandmama buys a printed copy of the pattern and merely looks at it, without actually making a copy of whatever is therein, then that's not infringing. If she looks at the pattern over the Internet, then that is infringing.
And this isn't the only, or even the most important, case along these lines. I just like it because it's very clear as to this point.
Slashdot Mirror
So the people who create laws shouldn't be professionals who have experience working with the laws, and who have recieved years of specialized legal training?
Perhaps you would like to suggest that doctors ought not be allowed to practice medicine, and computer scientists should be banned from writing software?
Law is complex because we live in a complex world, with a complex society, and complex desires for what the law is to do. A simple law is something like 'an eye for an eye' but that's not a good law. Don't knock complexity. If that's the worst thing about the law, then you're doing pretty good. If it's not, then you have higher priorities.
This is in part because the USA is far too litigious and they know that if they answer a question that is true 999.999 times out of 1 million, the 1 in a million guy who is an exception will sue them for not being right in his particular case.
Meh. I'd say it has more to do with a desire (and a duty) to be accurate. This means that where there are two possible outcomes, even if one is much more likely than the other, you can't just discount one of them and ignore it.
The funny thing is, my friend has told me that lawyers like the law to be clear cut and not vague. He has stressed that lawyers hate vagueness.
I'd say it depends. It's often quite useful, since the law needs to be flexible. I have no problem with a certain degree of vagueness, if it's in the right place, in the right way.
Remember, President Clinton was a lawyer, which is why he was able to come up with the incredible "That depends on what the meaning of the word 'is' is" defense.
And that was a valid argument he made, if a thin one. He said 'There is no sexual relationship with her,' which is correct, if by 'is' you mean 'is presently' (since he had ended the relationship previously) as opposed to 'is or was.' Programmers work with languages in which things must be described precisely. So do lawyers, except that the languages in which we must be precise are the ordinary languages that everyone uses, often in quite imprecise ways. Legalese is just a side effect of trying to be precise.
Actually, I would hazard a guess that he meant that there is no exclusive right to listen, or that there is no right to listen that trumps other provisions of copyright or contract law. And that's all correct.
This also means that a lot of your silly post is bunk. If there's no exclusive right to listen, then the copyright holder can't give you one.
As it happens, your right to listen to a CD derives from the inherent right of free speech, which copyright is a limitation on, though copyright doesn't touch on the subject of mere listening, so there's no applicable limitation. And property rights held by the owner of the CD. Listening is no different, really, from the right to use the CD as a frisbee.
As for fair use, it's never something you should rely on. Anything can be a fair use, but just as easily can not be a fair use. It depends, and it'll be different from one case to another. Sometimes making a copy of a CD will be a fair use, other times it won't be. It depends.
All in all, I'd say that he knew what was going on, and that you're the clueless one.
The RIAA has claimed that people who buy a CD are not buying a physical object, but a license to listen to the music.
Show me. I've never heard anyone suggest that, except for people who foolishly think that licensing is common or desirable at the consumer level. It's a dumb idea for software, and it's a dumb idea elsewhere too. Fortunately, software is about the only field stupid enough to employ licensing on a wide scale. It's a bad idea, and we really ought to prohibit it.
The answer is that in normal cases, if you buy a CD, it's no different than if you buy a comb. You can use both in any lawful fashion you like. Since no law prohibits listening, listen away. There are laws about making more copies, OTOH.
I still want to know if I download a song "unlawfully" and burn it to a taxed Music CD, then rip it back onto my hard drive, is that copy now legal? ARHA seems to imply so, as would buying a cd and making multiple copies for my immediate family and friends, as long as they were on a taxed Music CD.
I think you're misinterpreting the AHRA.
Downloading the song onto an AHRA medium without anything between the wire and the medium which could itself be a medium (e.g. a computer's RAM or hard drive) would be quite tricky. Probably you'd need to build an AHRA-compliant device to do this, which means implementing SCMS, etc.
Also, AHRA only protects you from making a copy pursuant to the statute. It does not shelter you in upstream or downstream activities. So if you have an AHRA-compliant copy, you can't rip it to a computer under the AHRA. You'd need something else, which in practice is fair use. But the fair use analysis is not good. Likewise, distributing AHRA-compliant copies to others is not covered under AHRA, nor first sale, and fair use remains unlikely to help.
Copyright is very simple; only the copyright owner has the RIGHT to make copies of the work. That's all it says.
It actually covers a lot more than that. And it never says that copyright holders have the right to make copies. It says that they have the exclusive right to make copies, i.e. the right to exclude others from making copies. If it would otherwise be illegal to make the copies (because they are libelous, or child porn, or something) then copyright won't alter that.
Patents work the same way -- they're a right to stop other people from using the invention, but not a right to use it yourself.
Uh, cars aren't copyrighted
Parts of them might be.
you can't trivially make a backup of your car.
Copyright has nothing to do with whether potentially infringing actions are easy or hard. It's irrelevant.
Copyright applies to ideasphysical items don't need copyright
And yet, plenty of tangible works are copyrighted, from sculptures to architectural works. And you don't need a replicator to make copies of them, by the way.
It seems like it only mentions libraries;
That's because that's not fair use. That's a provision that deals with libraries. It's useless for pretty much everyone else.
Fair use is at 17 USC 107. It doesn't mention backups at all. It is possible that a backup might fall under the four-factor fair use analysis, but it is also possible that it would not. It depends on the circumstances of the specific backup. There is no general rule.
You can make as many copies of a legitimately purchased work as you like for your own personal use. You cannot distribute them, or lend them out or give them away - you may only lend or re-sell the orginal. If you re-sell the original, then you must destroy all copies you made for your own personal use. The law varies slightly in some places, for some works, but that is the general idea.
For example, in the US, that's only true for software, and even then, only very rarely. Nothing else.
In fact, with music, you actually have an extra *statutory* right -- the right to make a backup.
I know what you're thinking of, but that's not correct in several respects.
There has never been a fair use right for any copyrighted material that worked that way.
Well, anything could potentially be a fair use. I'd suggest running through the analysis. But it'll mostly hinge on the first and fourth factors.
Unfortunately, I suspect that the idea of a license to copyrighted works -- particularly the way licenses are used with software -- has kind of screwed up people's understanding of copyrights.
I agree.
No, that deals with public performance, not listening. And it wouldn't do what you seem to want it to do.
In this case, the owner seems to have the right to make a copy of the work for personal use, but where does this right come from?
I'd say that fair use or an implied license are the likely sources. And that's assuming that it's not just de minimis. Of course, with a lack of litigation on the matter, we'll probably never know for sure.
If the right comes from the fair use right to make a backup copy of a work, then is it legal that the backup is the work being played, and not the original CD?
There is no blanket fair use right for anything. Anything can or cannot be a fair use, depending on the circumstances. It might be okay for Alice to rip a CD but not for Bob to do so, depending on the facts regarding each. So don't assume that there's "a fair use right to make a backup copy" because there's no such thing. Each use, by each user, must be considered independently.
a fundamental fair use right
Again, no such thing.
Yes, it's easier to initiate a suit, and it's easier to show enough proof to win a suit, but the plaintiff still has to do it. He can't just accuse someone, fail to show any evidence, and require the defendant to defend himself.
... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." You don't just file these things at will.
And also, implications are not good enough. To file a suit you need to certify "that to the best of the [attorney's] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances
And to win, you need to prove your case by a preponderance of the evidence. That is to say, the court must believe that you are more likely than not correct, based on the evidence they consider and the weights they assign the evidence.
No.
Copyright protects creative works. It does not protect ideas, processes, methods, etc. Most works are a mixture of creative expressions and underlying ideas; the expression is copyrighted, the ideas are not. So while copyright doesn't allow you to copy a program so you can sell copies of it, it does allow you to figure out how it works and write a new program that works in an identical fashion. The implementation is what's creative, not the underlying workings.
With a piece of music, while you could certainly use the musical ideas present (e.g. changes in tempo, or whatnot), you can't copy the implementation, which in this case would be the actual piece of music.
Losing ten thousand potential customers can be a sizeable chunk of the market the copyright holder could possibly reach.
I know, but I think that the public benefits outweigh the public detriments. Fewer works created and published can be compensated for by greater freedom with regard to those works. The point is not to help copyright holders, but to help the public. Doing this might incidentally involve helping copyright holders, but only as a means to an end. C.f. setting up a public transit system might harm cabbies, but if it's still better for the people of the area when all is accounted for, it's the right thing to do.
Also such copies should only be legal to make of a copy that was approved by the rights holder (to prevent "viral" spreading of a work), although you are only liable if you can be reasonably expected to know that the copy you used was not approved.
Well that's just insipid. Rightsholders can already authorize any damn thing that they want. An exception is a limit on their ability to prevent people from doing things.
Though I think "reasonably expected to know" is a basic requirement
You're basically saying you want a negligence standard.
This would still outlaw sharing over P2P or Warez sites but why exactly should that be legal anyway?
The correct questions are why should we have copyright at all? And if so, precisely how much? I think that copyright is a good idea, but only to a point. That point is the point of maximum public benefit. Encouraging creation and publication of original works is one kind of public benefit, but only one kind. Of equal importance are encouraging the creation and publication of derivatives, and in having no, or minimal copyright, in both term length and scope. Also, copyright should not fight the public norms; it's just not important enough. Copyright is like Prohibition, not Civil Rights.
Well, sure, that would create the broadest license
No, it would not create a license at all. It would reduce the scope of copyright. To the extent that you were engaged in a use that fell under the exception, no copyright would exist at all. A license can only exist where a copyright exists and is applicable.
but that would also greatly reduce the commercial viability of many products that are sold for noncommercial use, and discourage their production
Maybe, but I'm not confident that that's true. Furthermore, would the benefits to the public of such a broad exception outweigh the detriment of whatever lessened creation and publication occurred. Honestly, I suspect that it would. It also has the benefit of bringing copyright law into line with social norms, rather than trying to fight them. Given that the law is meant to serve the public, rather than artists or publishers specifically, adhering to these norms is a good idea. I don't like it when laws are flagrantly broken, but unless the law is really important (and copyright is not) the solution is to stop having that law or to make it more tolerable to people, not to fight them.
Because the fair use exception is particularly important, particularly in noncommercial contexts, because of its connection to 1st Amendment rights.
No, all the exceptions establish limits on copyright. In the absence of applicable copyright in those areas, all that remains are the First Amendment rights of the users to do as they like. Fair use is a catch-all, but it's no more or less important than, say, the 110 exceptions.
Which is why already certain noncommercial infringers are already protected this way for innocent infringement that is reasonably, though wrongly, believed to be fair use
No, they are not. Innocent infringement applies regardless of why the infringer reasonably thought that he was not infringing. It isn't limited to attempted fair use only.
I know, and it's great for the purposes of computing statutory damages, but it does nothing for the elements of the offense to begin with. An innocent infringer is still an infringer, and still liable for his infringement. He's not innocent at all, he just wasn't even negligent. It's not the best piece of terminology.
No, I'd rather just have a blanket exception: if you're a natural person, and you're acting noncommercially, you're not infringing, whatever you're doing, and whatever your mental state is. Copyright would only be a factor in commercial matters, or for organizations, corporations, etc.
I'm ambivalent about adding mens rea to copyright, since it would seem to encourage people to be deliberately ignorant of the copyright status of works, so that they could get away with things.
Also your third exception is all tangled up. Commercial fair use is possible, commonplace, and still entirely fair, so why treat it differently? And why only invoke fair use, when there are a whole panoply of exceptions to copyright other than fair use? First sale is an entirely different creature than fair use, so why wouldn't it protect people who think they're sheltered by that doctrine?
The user receives octet stream the server sends, and saves it to file. That's not illegal; it's the part analogous to when you are handed an unauthorised copy of a book by the unscrupulous book seller.
I'm afraid not. Copyright law makes it infringement to make copies unauthorizedly. Copies are defined as being material objects in which the intangible work is fixed. So a story is not a copy; a paperback containing that story is. Likewise, a file is not a copy, but the RAM or hard drive or other computer media where the file is stored is the copy, since that's the material object. And we can't move material objects over a wire just yet. This means that whatever copying might be occurring on the server side, those copies can't reach the downloader, and he must make his own.
So let's reconsider what's happening? The information gets sent along the wire. But when the requesting party receives it, he fixes it, probably more than once, into various media. He is making copies. It is not like being given a book. It is like using a notepad to write down what the person on the other end of the telephone is saying to you. Who is liable for making these copies? Courts have said it is the person who causes these events to occur. This means the downloader, since the acts being taken by the other computer are in response to his request. They didn't happen automatically, whether he liked it or not. The other guy is in trouble too, but that won't get the downloader off the hook.
Every case that's looked at this, Netcom, Napster, Marobie, Utah Lighthouse, etc. has found downloaders to be liable for infringement based on copying.
My OSX Mac is a laptop, actually, and I use page up and down keys to scroll mostly. But your suggestion is not a solution. Using the standard scrollbar in iTunes, or at least exactly mimicing its behavior, is the actual solution.
Yes, it's silly and oft-criticized, but it'd probably be better to create some broad exceptions that acknowledge how computers work with regard to all kinds of works. And nothing as limited as 117. And some broad exceptions for ordinary people acting noncommercially would also be good.
17 USC 501(a).
I don't see a mens rea element there.
Contrast with a civil remedy for computer intrusion:
18 USC 2707(a) (emphasis added).
Firstoff, digitizing an embroidery design is itself a creative work, much like creating a good translation of text from English to Japanese. As such, copyright protection is appropriate.
That's only one hurdle. We also must consider whether copyrights for such patterns will produce a net benefit to the public. We must consider how many designs would be created and published without copyright, and whether any copyright would result in more creation and publication, and if so, whether it would be enough to benefit the public more than they would be harmed by the existance of the relevant copyrights. (This is because the public benefits from having original works created and published, from having derivative works created and published, and having no or minimal copyrights on those works so that everyone is free to use the works as they like. Encouraging one at the expense of another isn't good unless the net result is better for the public, and all three are ultimately satisfied anyway)
I would imagine that some amount of protection might be appropriate, though I'd want to see some hard numbers first. But it probably ought to be a fairly minimal amount of protection. I don't expect that embroiders are significantly incentivized to create and publish patterns because of copyright-related potential revenue. Other incentives might be stronger, and I'm fully prepared to let artists create and not get copyrights if they're going to create anyway. Why pay for the cow when you can get the milk for free, after all?
No, they're correct. Copyright is a strict liability statute, like, oh, statutory rape. If you do it, you've broken the law, regardless of whether you intended to or not, or how cautious and reasonable you were in your attempts to avoid breaking the law. Mental state is not a factor.
It can be useful in reducing statutory damages, and it makes you fairly sympathetic, as if grannies that embroider aren't already, but it does not get you off the hook.
Patents work the same way. What protects ordinary people is that generally no one is interested in going after them. It's not economically worthwhile or anything.
Yes, that's absolutely correct, except that it's completely wrong, sorry:
Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) (emphasis added).
Computers make copies all the time in their normal operations. It's the way they're built. Unfortunately, this means that it's trivially easy to infringe using a computer, as opposed to by other means. If dear old grandmama buys a printed copy of the pattern and merely looks at it, without actually making a copy of whatever is therein, then that's not infringing. If she looks at the pattern over the Internet, then that is infringing.
And this isn't the only, or even the most important, case along these lines. I just like it because it's very clear as to this point.