If uploading isn't relevant, it should be easy enough to find a case involving someone downloading from Usenet, from an FTP server, or doing anything else that doesn't involve the use of a P2P client.
Well, there's always the Intellectual Reserve v. Utah Lighthouse Ministry case:
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.
There, the court is talking about a user who merely looks at (and thus, necessarily downloads) pages on the web. Such a user isn't involved in distribution at all.
Of course, who the hell cares? You're very much misunderstanding the law, it seems. If someone uses Napster, say, and engages in and is successfully sued over both uploading and downloading, then this means that downloading alone is infringing. The law does not require that it be coupled with uploading in order to be infringing, nor does it fail to make downloading illegal. That they are often seen together means nothing, and you're flat-out wrong to read anything into it.
If you want to delude yourself about the law, then that's fine, but I don't like it when people spread misinformation about copyright law. I think that the only way we're going to fix copyright is if people understand just how bad the current system is, and that means how bad it acutally is, rather than whatever you fantasize about it.
Let's consider the difference between these three scenarios:
1) I own a car and I sell it to you in exchange for money.
2) I own a car and I sell it to you in exchange for money and your binding promise that you will not use drive it on the weekend.
3) I own a car, and I hand you the keys, tell you that you can borrow it to drive to the neighborhood Stop 'N Rob.
In the first scenario, you end up owning the car and can do any damn thing with it that you like, so long as you don't break the law. In the third scenario, I still own the car, and you can only do things with it that I permit you to do.
Arguably, the third scenario is the equivalent to consumer software licensing.
The second scenario, however, is probably more along the lines of what's happening, yet not appreciably better. Here, while you own the car, you are still restricted as to what you can do with it. The law permits you to drive on the weekend, yet I am requiring you not to, and since we'd have an enforceable agreement (probably backed up with a reversionary property interest), you really couldn't.
If a EULA sets out terms for use and reproduction of the pertinent software, and is enforceable, then it doesn't matter whether 117 could apply or nominally applies. You can't actually use it without breaking the agreement, losing your right to the software, and thus losing a 117 right too.
Obviously if you don't agree to them, what is said in them does not apply and you can be the owner and not needing them.
Unless, of course, the owner won't sell it to you without your agreement, in which case failure to agree results in you not being the owner. While agreement to EULAs comes after the exchange of money for the software, most courts have been enforcing EULAs as being a part of the same, unitary sales transaction. They're just terms that are put forward after the money changes hands. You can reject them, but then you need to return the software and get your money back. If you don't, it's assumed you agreed based on your conduct. The ProCD case is the leading pro-EULA case (and n.b. it dealt with public domain material).
so there was no class of defendants who were simply downloading without being redistributors as well.
First, that's irrelevant. When you sue someone for copyright infringement, you have to be specific. You can sue them for infringement of the 106(1) reproduction right, the 106(3) distribution right, etc., but you have to say which so that you can prove the various elements that apply for each of the rights. You can pick more than one, but you have to make out your case for each. So it doesn't matter whether people were being sued for both; the case was still made for each type of infringement at issue separately.
It's a bit like the torts of assault and battery. If I stand in front of you, and you see me about to hit you, and then I do hit you, I've engaged in two distinct torts. If you sue me, you can sue me for either, or both. But the elements of the claims are entirely different. Proving that I hit you will help your case for battery, but it will do nothing whatsoever for you case for assault. Proving that you saw me about to hit you will help your case for assault, but do nothing with regard to battery. Since you have to prove all the elements of all the claims separately, the case with the factual scenario I described would still be perfectly good precedent for a case that was only about one tort or the other.
Second, you're wrong. Napster, IIRC, allowed leeches, and the defendant in the BMG case was sued only on the basis of her downloading. Maybe she was uploading too, but that wasn't part of the case, and might as well not have happened for all that it affected the case.
Sure. Let's say that you record music off of the air in a manner that neither falls under the AHRA nor is fair use. Remember, no class of use is inherently fair or unfair; the circumstances are what's key. So if you made a recording of music off of the radio that was not transformative, for commercial purposes, of the entire work, where the work is creative (as opposed to basically factual), and did so in order to have a permanent copy without having to pay for it (as opposed to, say, time shifting without librarying), you'd probably lose out on a fair use argument too.
But as a practical matter, it would be difficult to get sued for that, since it's difficult to imagine RIAA ever knowing what you had done, or caring if they did somehow find out.
Does music on an iPod fall under the definition of "digital musical recording?"
I don't know. I'd have to know more about how an iPod worked. But I'd suspect not.
The definition does not force the "digital musical recording" to exist only on an AHRA device/medium, so a computer dedicated to playing music could be covered, since the OS and other programs would be incidental to that role.
I agree. And that's basically what a CD player is. But hardly anyone has general purpose computers that are used so as to qualify for that.
The 9th makes bad law. It defines the "active judiciary." It is consistently the most reviewed and reversed (relative to size) circuit (cf. the 5th).
All the circuits have their ups and downs. But when you take the 9th's size into consideration (it's the biggest circuit, with the most cases), it's pretty middle of the road in terms of review and reversal. There's an article about it here. Plus, it's not like either review or reversal are bad or indicate a failure by the lower court.
Copying off an AHRA CD to a computer so you can at some indeterminate time make a "digital musical recording" is a "use"
Except that it's not going to fool anyone. There is a limit to how far you can be clever with the law and get away with it, and you're passing it. You'd do better not to delude yourself or mislead others along these lines.
in much the same way that someone growing dope in their backyard or a butterfly flapping it's wings is regulatable interstate commerce, or that invoking eminent domain to transfer private property to a private corporation is "public use.":-)
Meh. I don't really have a problem with either Wickard or Kelo.
Thanks for the discussion, it can be nice arguing with lawyers, since they usually don't go all "ad hominem" when presented with something with which they disagree.
Yes. Of course, only an idiot would disagree with a lawyer.;)
In what way is a copy made under Section 1008 unlawful?
They're unlawful because they're not noninfringing. They're still infringing, but since they're nonactionable, you can't be sued over the infringement. That doesn't mean there's no infringement.
There is nothing which says it is only non-actionable to copy onto such a medium. It is also a "use" to copy off of the media.
Nice try. The statute says that it is nonactionable to: 1) manufacture, import, or distribute the relevant devices and media, and; 2) "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
So, unless you're making one of those recordings, you're not protected. And as we already discussed, a computer's hard drive can't be a digital musical recording as that term is defined in the statute (at 17 USC 1001(5)) because of the presence of computer software.
Once the content has touched the media for which the consumer has paid indirect royalties, further "noncommercial use" is covered.
That's just not what the statute says at all. It might be what you'd like it to say, but let's try to stick to reading the statute that really exists, hm?
MAI vs. Peak is bad law (which isn't surprising, coming from the 9th Circuit)
Oh, it's good law, it's just a bad decision. As for the 9th Cir. though, what's your problem with them? They're in desperate need of a sensible circuit split, but otherwise they're pretty ordinary.
The sole purpose of software on a disc is to load it into RAM and run it. That's fair use.
No, I'd say that there's a normal implied license, where there's not an express license. And of course, there's section 117, which makes it noninfringing to make copies of software you own for the purpose of running it. But pervasive software licensing (which is bizarre, and AFAICT totally unjustified) avoids 117 because the licensees arguably don't own anything.
I'd like to see the RIAA try to claim people aren't allowed to rip CDs for playback on their iPods.
Back when Rios were the Duke of New York, A Number One mp3 players, the RIAA brought exactly that suit, based on the AHRA, and lost. So I guess you got your wish already!
I would argue that as long as the download were only kept on the computer temporarily (being ancillary to the process of making legal "use" of an audio CD-R), it's legal.
And that's a good argument. But in some jurisdictions -- those that stand by MAI v. Peak -- it would probably fail.
During ANY other forms of copying subject to the AHRA,
Well, the other ones tend to involve AHRA-type devices, so would not have the same problem as a non-AHRA device using AHRA media.
you have a fully legal copy of the work
No you don't. This is where reading the statute very very carefully becomes key.
Section 1008 says this:
No action may be brought under this title alleging infringement of copyright based on....
A more typical exception, such as section 110, says this:
Notwithstanding the provisions of section 106, the following are not infringements of copyright....
See the difference?
Section 1008 copies are not non-infringing, they're non-actionable. They're still just as infringing as ever, you simply can't be sued over them. But their infringing nature still stains them if you engage in some other activity outside of the 1008 safe harbor. For example, the first sale statute (section 109) only applies to copies that are lawfully made. Since a 1008 copy isn't lawfully made, you can't transfer it. The fair use analysis will be affected by this as well; you'd already have three factors against you, and since this is a mere substitute for a lawfully created copy, made in order to avoid paying full price, it'll lose the fourth factor as well.
Oh, I don't see it as a problem that the AHRA doesn't apply to computers
I agree. It would be bad for it to apply to computers.
Holy shit! Someone actually bothered to read more of the AHRA than section 1008! And who is almost entirely right!
The one problem is that the AHRA really does not apply to computers:
As for computers themselves:
(3) A "digital audio recording device" is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for-- (A) professional model products, and (B) dictation machines, answering machines, and other audio recording equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds.
Computers as a whole don't fall within subsection (3) because their digital recording function is not "designed or marketed for the primary purpose of... making a digital audio copied recording for private use."
There was a court case about all this some years back. The RIAA was arguing that computers and computer peripherals such as mp3 players did fall within AHRA. They wanted this to be the case so that they could 1) get royalties, 2) require computer and peripheral manufacturers to implement the SCMS system of DRM that is mandated by the AHRA. In the case, RIAA v. Diamond, both the district and circuit courts found that computers were outside of the AHRA. The cases are worth reading. They even look at the legislative history in which Congress, in debating the law, also said that this law wouldn't apply to computers.
What the AHRA does apply to are Audio CDRs, whether or not you use them in computers or in standalone Audio CDR burners.
Oh, and if you also use those audio CD-R discs for downloaded music, then that would be legal, too!
Of course, if the computer that the downloads go through has RAM or a hard drive that's involved with the downloading, you might still be screwed. The AHRA only protects you against infringement suits with regards to fixation in the AHRA-compliant media. Fixation in other media wouldn't qualify unless you had a sympathetic court that isn't fond of the MAI v. Peak line of cases. The 4th Cir. maybe?
We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders' exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights.
A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001).
[W]e do not hold that a computer owner who downloads copyrighted software onto a computer cannot infringe the software's copyright. When the computer owner downloads copyrighted software, [he] possesses the software, which then functions in the service of the computer or its owner.
CoStar Group v. LoopNet, 373 F.3d 544, 551 (4th Cir. 2004).
Last June the Supreme Court held in [Grokster] that a distributed file-sharing system is engaged in contributory copyright infringement when its principal object is the dissemination of copyrighted material. The foundation of this holding is a belief that people who post or download music files are primary infringers. [Aimster], which anticipated Grokster, made the same assumption.
BMG Music v. Gonzalez, 430 F.3d 888, 889 (7th Cir. 2005)
I guess it depends on how you define `seriously', because I see people arguing otherwise all the time.
Actually, I think it depends on how I define 'people,' because I have yet to see anyone who knows anything about US copyright law argue otherwise. Plenty of knowledgable people, including myself, will argue that it shouldn't be illegal, but everyone will accept that it is at least prima facie illegal.
No, the 1976 Copyright Act was passed in 1976. The AHRA was passed in 1992, when the RIAA was concerned about DAT and Minidisc and CDR and less forward-thinking people were wondering when Congress would get around to making it expressly legal to tape music from the radio, make mix tapes, etc.
Also, VCRs did exist in 1976, they were just expensive and not terribly popular yet and somewhat primative. I also existed in 1976, but I'll grant that I wasn't terribly popular then either.;)
where a work is under joint copyright you would, I assume, need the permission of all joint holders
No, only one of them. They have to account for profits amongst themselves, and obviously couldn't transfer any interest other than their own (which means no unilateral transfer of exclusive rights), but otherwise they can do as they like.
I have no idea about the particulars of US law you mention as IANALOEAUSC (or even a US citizen).
Meh. I find that/. is pretty US-centric, and I'm a lawyer in the US, familiar only with US law, so that's what I centerally fall back on. If you're in a country that draws its law from the UK, I would imagine it to be similar to ours in this respect.
What intangible things would you commonly characterise as "property" or "owned"*?
Debts, easements, stock in a company, etc.
Copies are property, and works are not. Copyrights could easily be considered to be property, but I think that this would be a bad idea.
Also, I don't understand what rivalry has to do with whether something's property?
A DVD -- the tangible disc -- is rivalrous in that either you can have it, or I can have it, but we can't both have it simultaneously. If I want to watch the DVD in Boston, and you want to watch the DVD in LA, we can't do both without tediously shipping the DVD from one of us to the other. A movie -- the information on the disc -- is nonrivalrous in that we can both use the movie simultaneously, simply by making another DVD with the same movie on it, transmitting it to one of us, etc.
More simply, rivalry means that in order for one person to gain a thing, another person has to lose it. Nonrivalry means that everyone can gain a thing without anyone losing it.
Generally, something is property if it meets three criteria: 1) the owner can use and enjoy it; 2) the owner can lend it to others and demand its return, and; 3) the owner can dispose of it, either by conveying it to someone else, or destroying it.
Creative works don't really meet numbers 2 and 3. Copyright is an attempt to simulate -- somewhat -- what it would be like if works were property. We don't do this just because we can, but rather for some public policy goals that I won't get into here, but which are not intended to help artists other than coincidentally. It's meant to benefit the public first and foremost.
One of the primary arguments that the RIAA has floated is that they're actually only selling you a license for the music.
With regards to CDs, tapes, records, etc. where have they said this, actually? I've never noticed it, and I'm pretty certain that it's just believed by brainwashed computer geeks who not only unquestioningly accept the idea that licenses in ordinary consumer transactions are lawful or even a good idea, but that it's commonplace outside of computer software.
N.b. that mere restatements of the law (e.g. don't make copies of this CD) aren't licenses.
Should a group of the RIAA ilk take consumers to court for owning supposedly pirated music, then the RIAA or the group like them will need to prove to the court that the music is indeed illegitimate; "beyond a reasonable doubt" for criminal cases, and they must have sufficient evidence for strong suspicion for civil damages (IANAL, so I don't know all the legalese speak for the necessary evidence in a civil case).
Well, only the government can prosecute a crime. If RIAA et al sue you, it'll be a civil suit. The burden then is one of a preponderance of the evidence. To put it another way, whatever fact is most likely is true. If they can show a 51% likelihood that you infringed, and you can only show a 49% chance that you didn't, then you infringed. The 'beyond a reasonable doubt' standard is only in criminal trials.
If you have digitized music, copyright laws and DMCA have little chance of harming you in court, because the onus is on the litigant to prove that you violated these laws. If there is any way that you could have happened upon DRM-free copies of the music, any lawyer worth the $100 you pay for an hour in court will get the case promptly thrown out, and most likely will get the prosecuting party to pay the bill for wasting everyone's time.
And so, this is wrong, in that while they do have to prove their prima facie case, merely 'any way' that could explain the facts without unlawful activity isn't good enough for the defendant. It has to be the most likely way. It's not about what's possible; it's what probable.
Multiple people cannot have the copyright on the whole of the song
Sure they can. There are two circumstances in which this can occur:
1) The work is a joint work, in which case copyright vests in all the authors under 17 USC 201(a)
2) The copyright can be transferred in toto to multiple people under 201(d)(1).
The result is a copyright that is treated like a tenancy in common, with the copyright holders having undivided ownership in the entire copyright. They can then exploit the copyright however they like, so long as they account for profits with the other co-tenants, and don't transfer or grant exclusive interests in the work to others without complying with section 204.
I don't think anybody has ever been sued by the RIAA merely for having music or even downloading music -- they've only sued people for uploading/sharing music (though they might like to claim `illegal downloading' and things like that.)
Well, downloading can certainly be illegal, and there have been numerous opinions to that effect by district and circuit courts. Really, no one even seriously argues otherwise.
But downloaders are somewhat harder to track down, and less worthwhile in terms of the effect on other infringers if they're shut down, so they're probably the lowest priority of RIAA et al. Uploaders and network providers are better targets and a more efficient use of resources.
I'm not sure where they get the authority, but they do occasionally do raids on business and require that the business prove that it has legal licenses for all the software they use.
Offhand, I'd guess that they either 1) get an ex parte seizure order as part of an infringement suit, using 17 USC 503, or 2) show up at the business and threaten to get such an order if they aren't allowed in to poke around.
Thus making the thief guilty of copyright infringement.
Oh? Which exclusive right of the copyright holder would the thief have infringed upon? I know that you're not going to say it was distribution, because the distribution right is the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending" and ordinary larceny isn't any of those.
There's no express right to make a backup of an audio recording, but leaving that aside,
Well, there's a couple of things that can be used for more or less the same thing: 17 USC 107 and 1008. (Do be sure to read the definitions in sections 101 and 1001 lest you misunderstand 1008 like most people do)
From the legal perspective, it's silly to even make a backup if one loses the right to use it in the event the original media is destroyed.
Why? The right to use a recording in general isn't the same as a right to have access to a particular recording. Besides, the right to generally use recordings isn't part of copyright, so no copyright holder could give you such a right. Rather, the right to use a specific copy is one that comes from owning that specific copy, just as the right to use a hairbrush is held by the person who owns the brush.
one might retain constructive possession of the originals. That constructive possession would, if we assume the backups were themselves legal, permit the continued use of the backup media.
I'm still wondering who the hell would care, and what that person's basis for caring would be.
It's legal in the US to record music from the radio
Sometimes. It depends.
to rip it from your CDs
Sometimes. It depends.
to record it on a cassette tape from another cassette tape or CD or LP,
I'd say so, yes.
to download it from the Internet
Sometimes. It depends.
to stick a microphone out your window and record it from your neighbours stereo...
Sometimes. It depends.
the burden of proof is on the RIAA
Yes, but it's not much of a burden.
why do you think they go to such efforts to catch people actually using P2P software to get their music fix?
They're much easier to catch. If I rip CDs in the privacy of my own home, in a manner that is unlawful, RIAA simply won't know about it unless I tell them that I did it, or they happen to be in my living room, or something. When you operate on public portions of the Internet, it's a lot easier for them to take notice as a practical matter. It's like you're doing it in Times Square, and rather than have to bother to have actual people looking over your shoulder, they can just have some computer programs make the initial identifications.
Also, it's perceived as a more significant problem.
Yes, I remember tha AHRA. It's the one that says that consumer digital recording devices must implement a DRM scheme called SCMS in order for the AHRA exception on copying to apply, as well as pay royalties. It would be disasterous for computers and computer peripherals such as mp3 players to fall under AHRA.
In any event, you can use AHRA in conjunction with computers. You need only use Audio CDRs (which are labeled differently than regular data CDRs and cost more) and only make copies of works that fall under AHRA. This is because the exception applies to copies made with AHRA-compliant devices or media.
That's probably out of reach politically, and it's not even a good idea
We'll have to work on it politically, but anything's possible. I fail to see why you think it's a bad idea, however.
Few works have significant commercial value after 50 years.
Actually, few works have significant commercial value ever. Of those few, fewer still have significant commercial value after a few months of publication in any given medium. Of those, fewer yet still have significant commercial value after a few years. Almost nothing has significant commercial value after fifty years.
Of course, who the hell cares. The incentive given to authors through copyright only should be the minimum possible commercial value that will get the author to create the work. If an author will write a book if they think they'll make $10,000 from it, it's just stupid to try to give them $100,000. And if they'll do it for free, giving them a copyright at all is a completely bad idea. Trying to set up a continuing revenue stream for authors -- for a teeny tiny fraction of a percent of authors, that is -- is not at all the object of copyright.
To the extent that such copy protection required collusion between the content distributor and the player manufacturer, it could be made illegal under the commerce clause.
I suppose that it could be construed as being anticompetitive, but I think that on the whole First Amendment considerations should prevail. Which still doesn't mean that we have to give them copyrights on DRMed works or make it illegal to break the DRM.
The format of broadcasts is controlled in great detail by the FCC;
I'd rather reduce the authority of the FCC.
The TRIPS agreement forbids "formalities", so that's out without WTO negotiation.
And that's another good reason to throw TRIPS and other copyright treaties into the trash, where they belong.
I would disagree as to even the rewarding the artist part. The grant to the artist is meant to encourage him. Whether or not he is in fact rewarded depends on the market. Whether or not he should be encouraged depends on the nature of his work and willingness to seek a reward (consider e.g. architectural works, which traditionally were uncopyrightable because we knew they'd get created anyway, what with copyright not being a notable incentive in that field).
The purpose of encouraging the artist, however, isn't to do it for its own sake. It's to get more works into the public domain than we'd have there otherwise. If artists would create as much as they could on their own, without wanting copyrights, we'd have no need to grant them. It's rather like granting cable tv monopolies to get infrastructure built and maintained.
Slashdot Mirror
Well, there's always the Intellectual Reserve v. Utah Lighthouse Ministry case:
There, the court is talking about a user who merely looks at (and thus, necessarily downloads) pages on the web. Such a user isn't involved in distribution at all.
Of course, who the hell cares? You're very much misunderstanding the law, it seems. If someone uses Napster, say, and engages in and is successfully sued over both uploading and downloading, then this means that downloading alone is infringing. The law does not require that it be coupled with uploading in order to be infringing, nor does it fail to make downloading illegal. That they are often seen together means nothing, and you're flat-out wrong to read anything into it.
If you want to delude yourself about the law, then that's fine, but I don't like it when people spread misinformation about copyright law. I think that the only way we're going to fix copyright is if people understand just how bad the current system is, and that means how bad it acutally is, rather than whatever you fantasize about it.
How so?
Let's consider the difference between these three scenarios:
1) I own a car and I sell it to you in exchange for money.
2) I own a car and I sell it to you in exchange for money and your binding promise that you will not use drive it on the weekend.
3) I own a car, and I hand you the keys, tell you that you can borrow it to drive to the neighborhood Stop 'N Rob.
In the first scenario, you end up owning the car and can do any damn thing with it that you like, so long as you don't break the law. In the third scenario, I still own the car, and you can only do things with it that I permit you to do.
Arguably, the third scenario is the equivalent to consumer software licensing.
The second scenario, however, is probably more along the lines of what's happening, yet not appreciably better. Here, while you own the car, you are still restricted as to what you can do with it. The law permits you to drive on the weekend, yet I am requiring you not to, and since we'd have an enforceable agreement (probably backed up with a reversionary property interest), you really couldn't.
If a EULA sets out terms for use and reproduction of the pertinent software, and is enforceable, then it doesn't matter whether 117 could apply or nominally applies. You can't actually use it without breaking the agreement, losing your right to the software, and thus losing a 117 right too.
Obviously if you don't agree to them, what is said in them does not apply and you can be the owner and not needing them.
Unless, of course, the owner won't sell it to you without your agreement, in which case failure to agree results in you not being the owner. While agreement to EULAs comes after the exchange of money for the software, most courts have been enforcing EULAs as being a part of the same, unitary sales transaction. They're just terms that are put forward after the money changes hands. You can reject them, but then you need to return the software and get your money back. If you don't, it's assumed you agreed based on your conduct. The ProCD case is the leading pro-EULA case (and n.b. it dealt with public domain material).
so there was no class of defendants who were simply downloading without being redistributors as well.
First, that's irrelevant. When you sue someone for copyright infringement, you have to be specific. You can sue them for infringement of the 106(1) reproduction right, the 106(3) distribution right, etc., but you have to say which so that you can prove the various elements that apply for each of the rights. You can pick more than one, but you have to make out your case for each. So it doesn't matter whether people were being sued for both; the case was still made for each type of infringement at issue separately.
It's a bit like the torts of assault and battery. If I stand in front of you, and you see me about to hit you, and then I do hit you, I've engaged in two distinct torts. If you sue me, you can sue me for either, or both. But the elements of the claims are entirely different. Proving that I hit you will help your case for battery, but it will do nothing whatsoever for you case for assault. Proving that you saw me about to hit you will help your case for assault, but do nothing with regard to battery. Since you have to prove all the elements of all the claims separately, the case with the factual scenario I described would still be perfectly good precedent for a case that was only about one tort or the other.
Second, you're wrong. Napster, IIRC, allowed leeches, and the defendant in the BMG case was sued only on the basis of her downloading. Maybe she was uploading too, but that wasn't part of the case, and might as well not have happened for all that it affected the case.
The cites remain good cites.
Sure. Let's say that you record music off of the air in a manner that neither falls under the AHRA nor is fair use. Remember, no class of use is inherently fair or unfair; the circumstances are what's key. So if you made a recording of music off of the radio that was not transformative, for commercial purposes, of the entire work, where the work is creative (as opposed to basically factual), and did so in order to have a permanent copy without having to pay for it (as opposed to, say, time shifting without librarying), you'd probably lose out on a fair use argument too.
But as a practical matter, it would be difficult to get sued for that, since it's difficult to imagine RIAA ever knowing what you had done, or caring if they did somehow find out.
Does music on an iPod fall under the definition of "digital musical recording?"
:-)
;)
I don't know. I'd have to know more about how an iPod worked. But I'd suspect not.
The definition does not force the "digital musical recording" to exist only on an AHRA device/medium, so a computer dedicated to playing music could be covered, since the OS and other programs would be incidental to that role.
I agree. And that's basically what a CD player is. But hardly anyone has general purpose computers that are used so as to qualify for that.
The 9th makes bad law. It defines the "active judiciary." It is consistently the most reviewed and reversed (relative to size) circuit (cf. the 5th).
All the circuits have their ups and downs. But when you take the 9th's size into consideration (it's the biggest circuit, with the most cases), it's pretty middle of the road in terms of review and reversal. There's an article about it here. Plus, it's not like either review or reversal are bad or indicate a failure by the lower court.
Copying off an AHRA CD to a computer so you can at some indeterminate time make a "digital musical recording" is a "use"
Except that it's not going to fool anyone. There is a limit to how far you can be clever with the law and get away with it, and you're passing it. You'd do better not to delude yourself or mislead others along these lines.
in much the same way that someone growing dope in their backyard or a butterfly flapping it's wings is regulatable interstate commerce, or that invoking eminent domain to transfer private property to a private corporation is "public use."
Meh. I don't really have a problem with either Wickard or Kelo.
Thanks for the discussion, it can be nice arguing with lawyers, since they usually don't go all "ad hominem" when presented with something with which they disagree.
Yes. Of course, only an idiot would disagree with a lawyer.
In what way is a copy made under Section 1008 unlawful?
They're unlawful because they're not noninfringing. They're still infringing, but since they're nonactionable, you can't be sued over the infringement. That doesn't mean there's no infringement.
There is nothing which says it is only non-actionable to copy onto such a medium. It is also a "use" to copy off of the media.
Nice try. The statute says that it is nonactionable to: 1) manufacture, import, or distribute the relevant devices and media, and; 2) "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."
So, unless you're making one of those recordings, you're not protected. And as we already discussed, a computer's hard drive can't be a digital musical recording as that term is defined in the statute (at 17 USC 1001(5)) because of the presence of computer software.
Once the content has touched the media for which the consumer has paid indirect royalties, further "noncommercial use" is covered.
That's just not what the statute says at all. It might be what you'd like it to say, but let's try to stick to reading the statute that really exists, hm?
MAI vs. Peak is bad law (which isn't surprising, coming from the 9th Circuit)
Oh, it's good law, it's just a bad decision. As for the 9th Cir. though, what's your problem with them? They're in desperate need of a sensible circuit split, but otherwise they're pretty ordinary.
The sole purpose of software on a disc is to load it into RAM and run it. That's fair use.
No, I'd say that there's a normal implied license, where there's not an express license. And of course, there's section 117, which makes it noninfringing to make copies of software you own for the purpose of running it. But pervasive software licensing (which is bizarre, and AFAICT totally unjustified) avoids 117 because the licensees arguably don't own anything.
I'd like to see the RIAA try to claim people aren't allowed to rip CDs for playback on their iPods.
Back when Rios were the Duke of New York, A Number One mp3 players, the RIAA brought exactly that suit, based on the AHRA, and lost. So I guess you got your wish already!
And that's a good argument. But in some jurisdictions -- those that stand by MAI v. Peak -- it would probably fail.
During ANY other forms of copying subject to the AHRA,
Well, the other ones tend to involve AHRA-type devices, so would not have the same problem as a non-AHRA device using AHRA media.
you have a fully legal copy of the work
No you don't. This is where reading the statute very very carefully becomes key.
Section 1008 says this:
A more typical exception, such as section 110, says this:
See the difference?
Section 1008 copies are not non-infringing, they're non-actionable. They're still just as infringing as ever, you simply can't be sued over them. But their infringing nature still stains them if you engage in some other activity outside of the 1008 safe harbor. For example, the first sale statute (section 109) only applies to copies that are lawfully made. Since a 1008 copy isn't lawfully made, you can't transfer it. The fair use analysis will be affected by this as well; you'd already have three factors against you, and since this is a mere substitute for a lawfully created copy, made in order to avoid paying full price, it'll lose the fourth factor as well.
Oh, I don't see it as a problem that the AHRA doesn't apply to computers
I agree. It would be bad for it to apply to computers.
The one problem is that the AHRA really does not apply to computers:
As for computers themselves:
Computers as a whole don't fall within subsection (3) because their digital recording function is not "designed or marketed for the primary purpose of
There was a court case about all this some years back. The RIAA was arguing that computers and computer peripherals such as mp3 players did fall within AHRA. They wanted this to be the case so that they could 1) get royalties, 2) require computer and peripheral manufacturers to implement the SCMS system of DRM that is mandated by the AHRA. In the case, RIAA v. Diamond, both the district and circuit courts found that computers were outside of the AHRA. The cases are worth reading. They even look at the legislative history in which Congress, in debating the law, also said that this law wouldn't apply to computers.
What the AHRA does apply to are Audio CDRs, whether or not you use them in computers or in standalone Audio CDR burners.
Oh, and if you also use those audio CD-R discs for downloaded music, then that would be legal, too!
Of course, if the computer that the downloads go through has RAM or a hard drive that's involved with the downloading, you might still be screwed. The AHRA only protects you against infringement suits with regards to fixation in the AHRA-compliant media. Fixation in other media wouldn't qualify unless you had a sympathetic court that isn't fond of the MAI v. Peak line of cases. The 4th Cir. maybe?
Oh, and jZnat is correct re: how to cite the USC.
A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001).
CoStar Group v. LoopNet, 373 F.3d 544, 551 (4th Cir. 2004).
BMG Music v. Gonzalez, 430 F.3d 888, 889 (7th Cir. 2005)
I guess it depends on how you define `seriously', because I see people arguing otherwise all the time.
Actually, I think it depends on how I define 'people,' because I have yet to see anyone who knows anything about US copyright law argue otherwise. Plenty of knowledgable people, including myself, will argue that it shouldn't be illegal, but everyone will accept that it is at least prima facie illegal.
No, the 1976 Copyright Act was passed in 1976. The AHRA was passed in 1992, when the RIAA was concerned about DAT and Minidisc and CDR and less forward-thinking people were wondering when Congress would get around to making it expressly legal to tape music from the radio, make mix tapes, etc.
;)
Also, VCRs did exist in 1976, they were just expensive and not terribly popular yet and somewhat primative. I also existed in 1976, but I'll grant that I wasn't terribly popular then either.
where a work is under joint copyright you would, I assume, need the permission of all joint holders
/. is pretty US-centric, and I'm a lawyer in the US, familiar only with US law, so that's what I centerally fall back on. If you're in a country that draws its law from the UK, I would imagine it to be similar to ours in this respect.
No, only one of them. They have to account for profits amongst themselves, and obviously couldn't transfer any interest other than their own (which means no unilateral transfer of exclusive rights), but otherwise they can do as they like.
I have no idea about the particulars of US law you mention as IANALOEAUSC (or even a US citizen).
Meh. I find that
What intangible things would you commonly characterise as "property" or "owned"*?
Debts, easements, stock in a company, etc.
Copies are property, and works are not. Copyrights could easily be considered to be property, but I think that this would be a bad idea.
Also, I don't understand what rivalry has to do with whether something's property?
A DVD -- the tangible disc -- is rivalrous in that either you can have it, or I can have it, but we can't both have it simultaneously. If I want to watch the DVD in Boston, and you want to watch the DVD in LA, we can't do both without tediously shipping the DVD from one of us to the other. A movie -- the information on the disc -- is nonrivalrous in that we can both use the movie simultaneously, simply by making another DVD with the same movie on it, transmitting it to one of us, etc.
More simply, rivalry means that in order for one person to gain a thing, another person has to lose it. Nonrivalry means that everyone can gain a thing without anyone losing it.
Generally, something is property if it meets three criteria: 1) the owner can use and enjoy it; 2) the owner can lend it to others and demand its return, and; 3) the owner can dispose of it, either by conveying it to someone else, or destroying it.
Creative works don't really meet numbers 2 and 3. Copyright is an attempt to simulate -- somewhat -- what it would be like if works were property. We don't do this just because we can, but rather for some public policy goals that I won't get into here, but which are not intended to help artists other than coincidentally. It's meant to benefit the public first and foremost.
One of the primary arguments that the RIAA has floated is that they're actually only selling you a license for the music.
With regards to CDs, tapes, records, etc. where have they said this, actually? I've never noticed it, and I'm pretty certain that it's just believed by brainwashed computer geeks who not only unquestioningly accept the idea that licenses in ordinary consumer transactions are lawful or even a good idea, but that it's commonplace outside of computer software.
N.b. that mere restatements of the law (e.g. don't make copies of this CD) aren't licenses.
Should a group of the RIAA ilk take consumers to court for owning supposedly pirated music, then the RIAA or the group like them will need to prove to the court that the music is indeed illegitimate; "beyond a reasonable doubt" for criminal cases, and they must have sufficient evidence for strong suspicion for civil damages (IANAL, so I don't know all the legalese speak for the necessary evidence in a civil case).
Well, only the government can prosecute a crime. If RIAA et al sue you, it'll be a civil suit. The burden then is one of a preponderance of the evidence. To put it another way, whatever fact is most likely is true. If they can show a 51% likelihood that you infringed, and you can only show a 49% chance that you didn't, then you infringed. The 'beyond a reasonable doubt' standard is only in criminal trials.
If you have digitized music, copyright laws and DMCA have little chance of harming you in court, because the onus is on the litigant to prove that you violated these laws. If there is any way that you could have happened upon DRM-free copies of the music, any lawyer worth the $100 you pay for an hour in court will get the case promptly thrown out, and most likely will get the prosecuting party to pay the bill for wasting everyone's time.
And so, this is wrong, in that while they do have to prove their prima facie case, merely 'any way' that could explain the facts without unlawful activity isn't good enough for the defendant. It has to be the most likely way. It's not about what's possible; it's what probable.
Multiple people cannot have the copyright on the whole of the song
Sure they can. There are two circumstances in which this can occur:
1) The work is a joint work, in which case copyright vests in all the authors under 17 USC 201(a)
2) The copyright can be transferred in toto to multiple people under 201(d)(1).
The result is a copyright that is treated like a tenancy in common, with the copyright holders having undivided ownership in the entire copyright. They can then exploit the copyright however they like, so long as they account for profits with the other co-tenants, and don't transfer or grant exclusive interests in the work to others without complying with section 204.
I don't think anybody has ever been sued by the RIAA merely for having music or even downloading music -- they've only sued people for uploading/sharing music (though they might like to claim `illegal downloading' and things like that.)
Well, downloading can certainly be illegal, and there have been numerous opinions to that effect by district and circuit courts. Really, no one even seriously argues otherwise.
But downloaders are somewhat harder to track down, and less worthwhile in terms of the effect on other infringers if they're shut down, so they're probably the lowest priority of RIAA et al. Uploaders and network providers are better targets and a more efficient use of resources.
I'm not sure where they get the authority, but they do occasionally do raids on business and require that the business prove that it has legal licenses for all the software they use.
Offhand, I'd guess that they either 1) get an ex parte seizure order as part of an infringement suit, using 17 USC 503, or 2) show up at the business and threaten to get such an order if they aren't allowed in to poke around.
Thus making the thief guilty of copyright infringement.
Oh? Which exclusive right of the copyright holder would the thief have infringed upon? I know that you're not going to say it was distribution, because the distribution right is the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending" and ordinary larceny isn't any of those.
There's no express right to make a backup of an audio recording, but leaving that aside,
Well, there's a couple of things that can be used for more or less the same thing: 17 USC 107 and 1008. (Do be sure to read the definitions in sections 101 and 1001 lest you misunderstand 1008 like most people do)
From the legal perspective, it's silly to even make a backup if one loses the right to use it in the event the original media is destroyed.
Why? The right to use a recording in general isn't the same as a right to have access to a particular recording. Besides, the right to generally use recordings isn't part of copyright, so no copyright holder could give you such a right. Rather, the right to use a specific copy is one that comes from owning that specific copy, just as the right to use a hairbrush is held by the person who owns the brush.
one might retain constructive possession of the originals. That constructive possession would, if we assume the backups were themselves legal, permit the continued use of the backup media.
I'm still wondering who the hell would care, and what that person's basis for caring would be.
Actually, that is the case in the US. The leading case on this is MAI v. Peak.
It's legal in the US to record music from the radio
Sometimes. It depends.
to rip it from your CDs
Sometimes. It depends.
to record it on a cassette tape from another cassette tape or CD or LP,
I'd say so, yes.
to download it from the Internet
Sometimes. It depends.
to stick a microphone out your window and record it from your neighbours stereo...
Sometimes. It depends.
the burden of proof is on the RIAA
Yes, but it's not much of a burden.
why do you think they go to such efforts to catch people actually using P2P software to get their music fix?
They're much easier to catch. If I rip CDs in the privacy of my own home, in a manner that is unlawful, RIAA simply won't know about it unless I tell them that I did it, or they happen to be in my living room, or something. When you operate on public portions of the Internet, it's a lot easier for them to take notice as a practical matter. It's like you're doing it in Times Square, and rather than have to bother to have actual people looking over your shoulder, they can just have some computer programs make the initial identifications.
Also, it's perceived as a more significant problem.
Property doesn't have to be tangible. That said, creative works aren't property, mainly because they're so damn non-rivalrous.
Out of curiosity, Perry Mason, what are you basing any of that on? Got some cites?
Yes, I remember tha AHRA. It's the one that says that consumer digital recording devices must implement a DRM scheme called SCMS in order for the AHRA exception on copying to apply, as well as pay royalties. It would be disasterous for computers and computer peripherals such as mp3 players to fall under AHRA.
In any event, you can use AHRA in conjunction with computers. You need only use Audio CDRs (which are labeled differently than regular data CDRs and cost more) and only make copies of works that fall under AHRA. This is because the exception applies to copies made with AHRA-compliant devices or media.
That's probably out of reach politically, and it's not even a good idea
We'll have to work on it politically, but anything's possible. I fail to see why you think it's a bad idea, however.
Few works have significant commercial value after 50 years.
Actually, few works have significant commercial value ever. Of those few, fewer still have significant commercial value after a few months of publication in any given medium. Of those, fewer yet still have significant commercial value after a few years. Almost nothing has significant commercial value after fifty years.
Of course, who the hell cares. The incentive given to authors through copyright only should be the minimum possible commercial value that will get the author to create the work. If an author will write a book if they think they'll make $10,000 from it, it's just stupid to try to give them $100,000. And if they'll do it for free, giving them a copyright at all is a completely bad idea. Trying to set up a continuing revenue stream for authors -- for a teeny tiny fraction of a percent of authors, that is -- is not at all the object of copyright.
To the extent that such copy protection required collusion between the content distributor and the player manufacturer, it could be made illegal under the commerce clause.
I suppose that it could be construed as being anticompetitive, but I think that on the whole First Amendment considerations should prevail. Which still doesn't mean that we have to give them copyrights on DRMed works or make it illegal to break the DRM.
The format of broadcasts is controlled in great detail by the FCC;
I'd rather reduce the authority of the FCC.
The TRIPS agreement forbids "formalities", so that's out without WTO negotiation.
And that's another good reason to throw TRIPS and other copyright treaties into the trash, where they belong.
I would disagree as to even the rewarding the artist part. The grant to the artist is meant to encourage him. Whether or not he is in fact rewarded depends on the market. Whether or not he should be encouraged depends on the nature of his work and willingness to seek a reward (consider e.g. architectural works, which traditionally were uncopyrightable because we knew they'd get created anyway, what with copyright not being a notable incentive in that field).
The purpose of encouraging the artist, however, isn't to do it for its own sake. It's to get more works into the public domain than we'd have there otherwise. If artists would create as much as they could on their own, without wanting copyrights, we'd have no need to grant them. It's rather like granting cable tv monopolies to get infrastructure built and maintained.