According to their last ruling, for a software like this to be considered OK there must be overwhelming legal use of the software.
That is completely wrong. The Grokster case did not remove the Sony rule. It added a new, independent theory of infringement that bypasses Sony. This rule has nothing to do with how the technology is used. Rather, it has to do with how the defendant acted and what the defendant said. If the defendant expected and provoked infringements, he's liable, even if there were only a few of them and the technology was overwhelmingly used lawfully.
you can bet that this will reach all the way to the supreme court.
I'll take that bet. The rule was already settled in the recent Grokster case. Since there's nothing new, the Supreme Court will refuse to hear the case if anyone even bothers to ask.
LimeWire's main defense here is the little "I might use LimeWire BASIC for copyright infringement." and "I will not use LimeWire BASIC for copyright infringement" radio buttons on the download page. Whether this counts as a binding agreement between LimeWire and the users in such a way that it relieves LimeWire of the responsibility to monitor for and stop copyright infringement is still quite up in the air.
Wrong again. That's no defense at all. The inducement theory will put all of LimeWire's actions and statements on the table. If they've generally encouraged infringement by word or deed, a peppering of a few warnings not to infringe will not help them out. Nor can anything their users agree to matter in a case between LimeWire and the RIAA.
think what's going to kill LimeWire is the offer of LimeWire pro... charging for and profitting from this is going to put a lot more responsibility in their hands.
It'll put a vicarious infringement theory into play, but it's really pretty minor, to tell the truth. They're pretty certainly screwed regardless of whether they had commercial software.
Give me a nice list of all the legitimate (read: legal) uses for LimeWire, and I'll believe you. I bet you can think of some, but I'm sure most people use LimeWire for illegal purposes.
So what? Grokster did not destroy the Sony rule. So it doesn't matter whether most people use LimeWire illegally.
Now they make be going after the wrong people, targeting the makers of LimeWire instead of the file-sharers,
Not at all. First, it's entirely possible to go after them and win. See e.g. the Napster and Grokster cases. The law allows indirect infringers to be sued just as easily as direct infringers. Second, plaintiffs would prefer to go after LimeWire. They have a policy of going after the deep pocket (i.e. a defendant that can actually pay the damages awarded). But more importantly, they have a policy of going after the head of the snake. If LimeWire shuts down, then all of their users will have to find new networks or stop sharing. Some will likely stop sharing. Others will go to new networks, but those will be shut down too, in turn. The idea is to stop P2P filesharing by shutting down the networks and software developers. Then it doesn't matter whether the users want to infringe in this fashion; they lack the ready ability to do so. Going after direct infringers is less useful to plaintiffs since it achieves less. Why go after one infringer, or a handful, when you can essentially go after them all by targeting the network?
Get the picture?
but a nice crackdown on illegal file-sharing sure beats some new, twisted form of DRM.
That is absolutely not how that works. They'll do both. What you're suggesting is appeasement, but I guarantee you that it won't work.
Assuming a non-public company, I'd say section 5 of the 1933 Securities Act. (Unless the interstate commerce language is relevant for once) The 1933 Act is unlikely to itself bear any exceptions that would avoid section 5. There may be some applicable rules such as Rule 506 or 701, but as those are SEC rules, I don't think we can say that they are uninvolved.
N.b. that I'm not a securities lawyer, I just know enough to have a broad idea of what goes in certain transactions so that I can stay in the loop.
Your post is also not true. The SEC has jurisdiction over all securities transactions. This includes both public and private offerings and actual transactions. When a private company grants stock, or even discusses granting stock, to private investors, employees, directors, etc. the SEC has authority over it and regulates it. The earlier poster is wrong, and so are you.
The Securities and Exchange Commission has jurisdiction only over publicly traded companies.
That is not true. Any securities traded in the US fall under their jurisdiction. They just tend to be more interested in companies that are, or are going, public.
I don't feel that your polluting car example carries any weight; there's demonstrable harm to the environment and to human beings because of the pollution.
It has nothing to do with the harm to the environment, or people. It simply illustrates the point that governments have broad regulatory authority and should act in the interests of their people. I could have just as easily had an example in which zoning laws were used to dictate where commercial development could and could not take place, what sorts of signage could be used, etc.
For the sake of art, someone should be able to decide whatever they like in terms of control. If they mean to distribute and profit off of their work, well, maybe you have a point.
No, that's not how it works. No one has an inherent right to copyrights. In fact, copyrights are an infringement of the right of free speech. They are tolerated, however, when they are more beneficial to the public than they are harmful. Since no artist inherently has any rights with regard to their work, other than to create it at all, and to reveal it to someone else, any other rights must be granted to them by the public. If the public won't grant him that right, then the artist simply won't get it, period. Thus, the public gets to decide how much control artists enjoy on works that the artist hasn't kept absolutely private. This is because they must give up their inherent rights in order to give the artist control over them. It's not something done lightly.
It IS property, just property that can't be physically held or manipulated.
No, it's not. If creative works were property, we wouldn't need copyright law at all. Ordinary laws of chattel property would work fine, just as they do for many things which are intangible (e.g. debts). Copyright law attempts to simulate, to some degree, what it would be like if works were property. Arguably, copyrights themselves (as opposed to the works to which they pertain) are property. And certainly copies are property. But works cannot be. There's a three-prong test for whether something is property or not (1: the owner can use and enjoy it; 2: the owner can lend it to others and recover it from them, and; 3: the owner can dispose of it by conveying it away or destroying it) and works are incapable of satisfying prong 2, and are incapable of satisfying prong 3 as well.
so shouldn't you interfere with their attempt to make their music into a restricted physical analogue
I should interfere with it. I should make it unpalatable for them, and just this side of impossible. It harms me for them to do that. Why would I ever encourage them to do it, or reward them for having done it? It would be contrary to my self interest. You have no problem with DRM-using authors acting in their self interest, so why shouldn't I get to act in mine?
Incentives tend to be more effective than punishments.
I agree. And remember, I don't think it would be constitutional to ban DRM. I want to provide such a huge incentive (i.e. copyright) to people who don't use DRM that DRM dies out. And since the DRMed works would be uncopyrighted as a result, I have no qualms with copying them freely, cracking the DRM, etc. Those authors will have had their chance for legal protection, didn't take it, and end up getting screwed as a result. Not my problem.
I can't tell if you're serious or not with saying "mere authors anad publishers".
I am serious.
The creator of a work and anyone they authorize to distribute their work should have absolute control over that work, as far as I'm concerned.
I disagree. A copyright holder should have no control over what other people do with their work, except to the degree that the public generally is better off giving them control over the public in conjunction with the work than the public would be if they did not.
Remember: a copyright is not control over the work. It is control over people.
I should be allowed to record music in my basement and never distribute it, carve a statue that's never seen, or paint a painting and then burn it.
I agree completely. I have no desire to compel artists to do anything at all, and I would be adamantly against any attempt to do so.
However, I also have no desire to let artists compel other people to do or not do things. I am willing to tolerate it if it is in the public interest, but only if it is in the public interest. And then, only to the degree that results in the greatest overall benefit to the public.
Similarily, I should be allowed to play my music at a concert and stipulate that nobody ever records it because I feel that each concert should only be listened to once.
I disagree completely. Copyright is meant to serve the public interest in promoting the progress of knowledge. A large part of this is ensuring that works are not lost. If you create a work and have no desire to preserve a copy of it for posterity, and that work is out there in the public, then not only should you never have the ability to prevent the public from stepping in and doing your job, but we should praise them for it, and condemn you.
If you don't like the DRM on a song, don't buy it.
That's like saying that if I don't like a car that pollutes heavily, that I shouldn't buy it. It is an asinine suggestion. If I don't like the polluting car, I will seek to have a law passed that bans the car altogether.
I don't think that we can ban DRM per se, due to the 1st Amendment, and I don't have a problem with that. OTOH, I do think that we can make the use of DRM so utterly unappealing that, in conjunction with highly appealing alternatives, such as copyright, that we can effectively eliminate it as a real threat to the public interest. If authors have to choose between copyright and DRM, and if they know that it will be legal to break the DRM, legal to make and distribute copies of the DRMed work, and that significant amounts of money and resources are available to crack the DRM, I think they'll abandon DRM of their own free will, opting to use copyright sans DRM instead. And if they don't, DRM will just turn out to be useless. Either way, the public wins.
Well, I don't think that we can ban DRM due to 1st Amendment concerns. But I do think that we can fight it effectively by making DRM and copyright mutually exclusive, and then making copyright far more attractive (while still maximizing the public benefit) than DRM as options to authors and publishers. But it does still require significant changes to the law.
There is a public performance right for some works. You can see it, and the other primary rights, at 17 USC 106. It's not a form of distribution, however; distribution requires that copies (i.e. tangible copies) be distributed. Of course, it is just as capable of being a fair use as anything else. Non-public performances, however, remain outside the purview of copyright, and that was more or less what was being talked about, I think.
You mean "chattels" or "personal property" rather than "real property", right?
Yes. Sorry for the error, I was pretty tired last night.
it may be goods delivered under licence
It could be, but this is pretty uncommon. Software is the only area where there is a real attempt at this sort of thing. While some people -- computer geeks mostly, it seems -- might think that everything is like software, really no one else licenses to the mass market. And EULAs themselves are still a little up in the air.
Culturally, no one cares about sharing music online other than RIAA et al and a small number of self-righteous people with sticks up their asses. I'm a copyright lawyer and I know no end of copyright lawyers, other lawyers, ordinary people, members of Congress, etc. who couldn't give a crap about online filesharing when they, or people they know, engage in it. And really, who have no objection to it generally, either.
The climate hasn't significantly changed. The laws are worse, and the bad guys are pushing their side of things more. That's about it.
I don't see any problem with people making their works *physically* more difficult to copy, as long as they don't try to make it *legally* more difficult.
I disagree. Remember, no one has an inherent right to a copyright. A copyright is granted by the public, via our servant, the government, only when it is in our interest to do so. We can, and traditionally have, granted copyrights only when the claimant satisfies certain conditions. I don't see why one such condition cannot be that they cannot use, authorize, or allow those they authorize to use, DRM with their works.
If they don't like it, they are free to either 1) not create or publish their works, or 2) use DRM and not get a copyright. I think that by making copyrights rewarding, and making the use of DRM unrewarding (by e.g. having the government put significant effort into cracking the DRM on the public domain works that would be using it) we can steer authors et al into doing what we want, even though it is ultimately their choice.
Also, if the copyright term really does expire, that means you can legally download a digital copy.
But unless the DRM is cracked, that copy still won't function.
Why does the copyright need to expire before people can do anything they like with the work?
It's possible you're misunderstanding me slightly due to my wording. I don't mean 'anything' in the sense of 'not nothing,' but instead in the sense of 'everything under the sun.'
When the work enters the public domain, there are no more copyright-related restrictions on the work. I can do literally anything I wish with the work, including simply making and selling copies. It is true, though, that prior to the copyright expiring, that I can do some things with the work. But not absolutely anything; I'm limited then.
You can already burn to CD and reimport into a lossless format
Why should I tolerate such a deliberate pain in the ass? Why is it in my interests to protect people when they try to make my life difficult by throwing obstacles at me? Especially as they may be insurmountable, since not all DRM is implemented like Apple's.
The RIAA never seemed to have a problem with that.
What, are you kidding? They hated home taping. There were campaigns against it, and ultimately they pushed through the AHRA which allowed it, a little bit, but they got a lot of things in return, like SCMS and money.
On legal grounds: the same rights and freedoms granted to me by the AHRA of 1992, in which these record companies have explicitly exempted private copying using recording devices in exchange for a blank media levy. And NO, you didnt specify "over the internet" or "through use of computers".. the AHRA applies to all else, and does not apply to computers only because of a convenient loophole and some bought judges.
Actually, they didn't exempt it, they made it non-actionable. There is a subtle, but important difference, which comes into play when you consider the precise wording of 17 USC 109.
Also, AHRA is quite narrow with regards to what it applies to, both in terms of works, as well as media and devices. But be glad it doesn't apply to computers, since otherwise computers would be required to implement SCMS, etc. The RIAA went after computers and mp3 players in the Diamond case, and we're all much better off with them having lost, and the courts having decided that computers and peripherals like mp3 players were not covered under AHRA.
the same rights and freedoms involved in me being allowed to tape the same copyrighted music from the radio
That would be AHRA again, or fair use when ARHA is inapplicable. And in some cases, that's just plain illegal. Not all home taping is a fair use, after all, nor is it covered by AHRA.
On idealogical grounds: the same rights and freedoms involved in me being allowed to measure and build a copy
That one doesn't really jibe with copyright policy generally.
Moral rights are also the biggest bullshit, and are a virtually unknown concept in the US. We don't have moral rights with regard to film, and we are best off not having them at all, since they are a completely bad idea with nothing in their favor.
Copyright law is utilitarian -- except for right now, when it's just corrupt.
Stupid but honest question: if DRM is bad, is the production of music only profitable through DRM also bad?
Yes. Ultimately, we're worse off with DRM and the music than we would be with no DRM and without that music. (It wouldn't be all music, of course: history shows that lots of music will get created, published, recorded, etc. without DRM) This means that the music you're asking about costs more to the public than it is worth to the public. That makes it bad.
It'd be great to have it, sans DRM. But if that won't happen, so be it.
Do people find it unfair that they can't circumvent copyright as easy as they'd like?
Often it is unfair. Literally so: when DRM interferes with a fair use, which by definition is not an infringement of copyright, then what else can we call that, but unfair?
Plus, DRM doesn't conform with the shape of copyright. Copyright expires; DRM does not. Copyright can be changed by legislation; DRM cannot be. Copyright has many exceptions lest it be overbroad and harmful (which is not to say that it isn't already overbroad and harmful); DRM tends to ignore these as implemented.
The DMCA makes it a crime to circumvent "effective means of access control." To me, the key word, there, is effective . As far as I'm concerned, if I can circumvent it, it isn't effective, Q.E.D..
I'm going to take a guess here: you don't really know anything about the law, right?
Not only is that not what it means, but no judge would ever think that your interpretation is correct, for the following reason:
It is a rule of statutory interpretation that Congress never intends to pass a meaningless law. Laws all must do something that wasn't already being done, because there are no useless laws. So only interpretations where there is some use to the law, some real meaning, are valid.
If it is illegal to break access controls that are effective, where effective means that they are unbreakable, then the law is meaningless. No one ever could break it, because it would be impossible to do so by definition. This cannot possibly be what Congress intended. Therefore, effectiveness must mean something else, something that permits a TPM to be broken, yet still be considered 'effective.' Maybe the word doesn't quite match the dictionary definition, but the law frequently uses words in a specialized manner. (Think of how various fields created their own definitions of words like 'computer' or 'broadcast' or 'network' or 'drive' or 'memory.')
What it actually turns out to mean is that it has any material degree of effectiveness against nearly anyone at all. ROT13 is likely not effective, but analogue Macrovision probably would be.
Your argument would get laughed out of court. You're coming across like one of those schmucks who rejects the authority of a court due to trivialities like the flag in the courtroom.
What happens when the copyright expires, as the Constitution demands it ultimately must? Will the DRM magically evaporate? Or will it impair people from doing anything they like with the then-public domain work?
This alone is reason enough to get rid of DRM to the fullest extent we can.
There are other problems with it, though. For example, copyright does not prevent people from conveying lawfully made copies of works. But iTMS DRM interferes with this, since the work is not usable by the second purchaser. Copyright law is meant to serve the public interest. Why should the public tolerate mere authors and publishers interfering in this, twisting and warping matters for their own desires? Why shouldn't the default rules be the only rules, at least in ordinary consumer transactions?
Copyright deals with the big picture, over the long term. You're thinking too small. Think big, and the problems that make DRM inherently unacceptable become plain as day.
Making backups, format-shifting, time-shifting, viewing unlimited times - THOSE are Fair Use.
Viewing is not a fair use. This is because viewing is not part of copyright, and therefore can't be covered under fair use, which is a part of copyright. Viewing is simply part of real property law. The right to watch a movie you own is the exact same right that you have to eat an apple that you own; it's the right of a property owner to do anything with his property that he wants to, if it does not violate the law.
As for backups, and space and time shifting, those are potentially fair uses, depending on the circumstances, but there can just as easily be circumstances where they are not fair uses. And there are plenty more fair uses besides the ones you listed, which are in fact quite novel and unimportant, really.
Copying the majority of a work, modifying it and distributing the derivative work is not Fair Use.
It can be. Parodists do this all the time.
Copying and then transferring copies to others for a fee is clearly not Fair Use.
Again, it can be, it just depends on the circumstances. Anything can be a fair use with the right circumstances. And anything can be unfair, with the wrong circumstances. That's how fair use is.
Frankly, the D.C. did a piss-poor fair use analysis in the CleanFlicks case. Factors 1 and 4 were in their favor, and should've been enough.
Sure, the rights we're talking about are ones that don't make much sense for a one week rental, but while in possession of content that I've rented, am I afforded the same rights that I would have if I owned the DVD/CD/whatever, during the rental period?
No, that's not how it works. You can engage in fair uses all the time, regardless of whether you own a copy, rent a copy, or don't have a copy at all. Fair use is not contingent on ownership. Rather, it's contingent on the circumstances involved. For example, it is entirely possible that if Alice tried to engage in a particular use whilst owning a copy, that it would be unfair, while if Bob tried to engage in the same use, not owning a copy, that it would be fair. Other factors are what's key. Depending on the use in question, ownership might be a relevant factor, but it is not the only one or the most important one.
As a consumer I don't have a problem with the general idea of DRM on a rental - my fair use rights aren't being violated, because I don't have the right to backup, timeshift, or format shift rentals to begin with (unlike media I own, for which any DRM is intolerable).
This is incorrect for two reasons.
First, you forget that someone is the owner of the copy being rented. Remember, with certain quite narrow exceptions, copyright law does not prohibit anyone from renting out a lawfully made copy of a copyrighted work that they own. For example, if you go to Best Buy and purchase a movie on DVD there, copyright law will not bar you from renting that copy as much as you like. 17 USC 109 is the relevant law.
Second, any use by any person may be fair. Whether it is fair or not depends on the circumstances involved. Mere ownership of the copy that is the source of the use is not required. It may be a relevant factor, but that is all. One can trivially imagine likely fair uses involving a rented copy. For example, if you are creating a presentation as a student for a film class, it would likely be a fair use to copy short clips from a rented copy of a film to demonstrate various points in your presentation. I suggest you look at the four elements of the statutory fair use test at 17 USC 107.
In any event, all DRM is intolerable in conjunction with published works.
Aren't artists people served by the same government?
They absolutely are, and I wouldn't have it any other way. The government owes a duty to artists just the same as it does anyone else. I would never tolerate discriminating against artists.
Why are they not equally protected?
You don't understand. Equal protection means that artists would have the same rights as non-artists. Since copyright is a special monopoly -- a privilege, not a right -- then equal treatment would mean not giving artists special treatment. It would mean not favoring artists.
A copyright is a monopoly just like a telephone monopoly or a cable tv monopoly. It is always going to harm society to some extent. However, it may also be beneficial to society to some extent. If a specific copyright law is more beneficial to society than it is harmful to society, then it is in society's best interests to have that law. If a different law would be more beneficial, than that law is the one that should be in force. If no law yields an increased net benefit, than the best option is to not have that law.
Personally, it is my learned opinion that our current copyright laws are either more harmful than beneficial, or at least not as beneficial as alternatives might be. This being the case, I want to change the law to one that is maximally beneficial to society. Whether this happens to reduce the degree of special benefits artists enjoy or not is of no interest to me whatsoever, save for how it might affect the public benefit.
And remember: artists are members of the public too. Artists benefit from a healthy public domain, from broad exceptions to copyright, etc. Not just because they're like everyone else, and enjoy creative works for their own sake, particularly when it's for free or minimal cost, along with the opportunity to copy and distribute those works, but also because as artists they make derivative works. Disney is a good example of an artist that benefited from the public domain. The artists of today can benefit by placing many of Disney's works into the public domain so that they can be drawn upon in their turn. It's a sort of circle of life kind of thing.
Besides which, economic studies indicate that reducing the length and scope of copyright would not adversely affect artists. The vast majority of works simply have no economic value, and so a monopoly on that value is equally worthless. The authors of those works lose nothing with shorter or lesser copyrights. For example, your post to which I am replying. You likely would've written it even if it wasn't copyrighted. So why should I give you a copyright? Why should I try to encourage you (with the reward of a monopoly) to do something you would do anyway? That makes no sense.
Of the tiny handful that have any value, the vast majority of those recover the vast majority of their value almost immediately upon publication. A typical book that is unusual in that it's not an instant flop makes 90% of all the money it will ever make within a few months of hitting the shelves. Republication in a different medium does the same thing: Most movies make most of their box-office money within a few weeks of opening in theaters, most of their pay-per-view money within a few weeks of being put on those channels, and make most of their retail money within a few weeks of the DVD hitting shelves. Adding decades to this ends up yielding a few more percentage points, but that's about it. IIRC, the extra 20 years added by the Sonny Bono Act -- bringing the term from life+50 to life+70, or 75 years to 95 years, depending on which term is applicable -- is worth maybe a nickel on average. I doubt that's much of an incentive to anyone.
Of the small minority of works that make any money at all, only the tiniest percentage continue to make significant amounts of money over a long span of time. It's the people who have those copyrights -- the people who have already made a fortune, and who want to go on making even more of a fortune -- that are copyrig
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According to their last ruling, for a software like this to be considered OK there must be overwhelming legal use of the software.
That is completely wrong. The Grokster case did not remove the Sony rule. It added a new, independent theory of infringement that bypasses Sony. This rule has nothing to do with how the technology is used. Rather, it has to do with how the defendant acted and what the defendant said. If the defendant expected and provoked infringements, he's liable, even if there were only a few of them and the technology was overwhelmingly used lawfully.
you can bet that this will reach all the way to the supreme court.
I'll take that bet. The rule was already settled in the recent Grokster case. Since there's nothing new, the Supreme Court will refuse to hear the case if anyone even bothers to ask.
LimeWire's main defense here is the little "I might use LimeWire BASIC for copyright infringement." and "I will not use LimeWire BASIC for copyright infringement" radio buttons on the download page. Whether this counts as a binding agreement between LimeWire and the users in such a way that it relieves LimeWire of the responsibility to monitor for and stop copyright infringement is still quite up in the air.
Wrong again. That's no defense at all. The inducement theory will put all of LimeWire's actions and statements on the table. If they've generally encouraged infringement by word or deed, a peppering of a few warnings not to infringe will not help them out. Nor can anything their users agree to matter in a case between LimeWire and the RIAA.
think what's going to kill LimeWire is the offer of LimeWire pro... charging for and profitting from this is going to put a lot more responsibility in their hands.
It'll put a vicarious infringement theory into play, but it's really pretty minor, to tell the truth. They're pretty certainly screwed regardless of whether they had commercial software.
Give me a nice list of all the legitimate (read: legal) uses for LimeWire, and I'll believe you. I bet you can think of some, but I'm sure most people use LimeWire for illegal purposes.
So what? Grokster did not destroy the Sony rule. So it doesn't matter whether most people use LimeWire illegally.
Now they make be going after the wrong people, targeting the makers of LimeWire instead of the file-sharers,
Not at all. First, it's entirely possible to go after them and win. See e.g. the Napster and Grokster cases. The law allows indirect infringers to be sued just as easily as direct infringers. Second, plaintiffs would prefer to go after LimeWire. They have a policy of going after the deep pocket (i.e. a defendant that can actually pay the damages awarded). But more importantly, they have a policy of going after the head of the snake. If LimeWire shuts down, then all of their users will have to find new networks or stop sharing. Some will likely stop sharing. Others will go to new networks, but those will be shut down too, in turn. The idea is to stop P2P filesharing by shutting down the networks and software developers. Then it doesn't matter whether the users want to infringe in this fashion; they lack the ready ability to do so. Going after direct infringers is less useful to plaintiffs since it achieves less. Why go after one infringer, or a handful, when you can essentially go after them all by targeting the network?
Get the picture?
but a nice crackdown on illegal file-sharing sure beats some new, twisted form of DRM.
That is absolutely not how that works. They'll do both. What you're suggesting is appeasement, but I guarantee you that it won't work.
Assuming a non-public company, I'd say section 5 of the 1933 Securities Act. (Unless the interstate commerce language is relevant for once) The 1933 Act is unlikely to itself bear any exceptions that would avoid section 5. There may be some applicable rules such as Rule 506 or 701, but as those are SEC rules, I don't think we can say that they are uninvolved.
N.b. that I'm not a securities lawyer, I just know enough to have a broad idea of what goes in certain transactions so that I can stay in the loop.
Your post is also not true. The SEC has jurisdiction over all securities transactions. This includes both public and private offerings and actual transactions. When a private company grants stock, or even discusses granting stock, to private investors, employees, directors, etc. the SEC has authority over it and regulates it. The earlier poster is wrong, and so are you.
The Securities and Exchange Commission has jurisdiction only over publicly traded companies.
That is not true. Any securities traded in the US fall under their jurisdiction. They just tend to be more interested in companies that are, or are going, public.
I don't feel that your polluting car example carries any weight; there's demonstrable harm to the environment and to human beings because of the pollution.
It has nothing to do with the harm to the environment, or people. It simply illustrates the point that governments have broad regulatory authority and should act in the interests of their people. I could have just as easily had an example in which zoning laws were used to dictate where commercial development could and could not take place, what sorts of signage could be used, etc.
For the sake of art, someone should be able to decide whatever they like in terms of control. If they mean to distribute and profit off of their work, well, maybe you have a point.
No, that's not how it works. No one has an inherent right to copyrights. In fact, copyrights are an infringement of the right of free speech. They are tolerated, however, when they are more beneficial to the public than they are harmful. Since no artist inherently has any rights with regard to their work, other than to create it at all, and to reveal it to someone else, any other rights must be granted to them by the public. If the public won't grant him that right, then the artist simply won't get it, period. Thus, the public gets to decide how much control artists enjoy on works that the artist hasn't kept absolutely private. This is because they must give up their inherent rights in order to give the artist control over them. It's not something done lightly.
It IS property, just property that can't be physically held or manipulated.
No, it's not. If creative works were property, we wouldn't need copyright law at all. Ordinary laws of chattel property would work fine, just as they do for many things which are intangible (e.g. debts). Copyright law attempts to simulate, to some degree, what it would be like if works were property. Arguably, copyrights themselves (as opposed to the works to which they pertain) are property. And certainly copies are property. But works cannot be. There's a three-prong test for whether something is property or not (1: the owner can use and enjoy it; 2: the owner can lend it to others and recover it from them, and; 3: the owner can dispose of it by conveying it away or destroying it) and works are incapable of satisfying prong 2, and are incapable of satisfying prong 3 as well.
so shouldn't you interfere with their attempt to make their music into a restricted physical analogue
I should interfere with it. I should make it unpalatable for them, and just this side of impossible. It harms me for them to do that. Why would I ever encourage them to do it, or reward them for having done it? It would be contrary to my self interest. You have no problem with DRM-using authors acting in their self interest, so why shouldn't I get to act in mine?
Incentives tend to be more effective than punishments.
I agree. And remember, I don't think it would be constitutional to ban DRM. I want to provide such a huge incentive (i.e. copyright) to people who don't use DRM that DRM dies out. And since the DRMed works would be uncopyrighted as a result, I have no qualms with copying them freely, cracking the DRM, etc. Those authors will have had their chance for legal protection, didn't take it, and end up getting screwed as a result. Not my problem.
I can't tell if you're serious or not with saying "mere authors anad publishers".
I am serious.
The creator of a work and anyone they authorize to distribute their work should have absolute control over that work, as far as I'm concerned.
I disagree. A copyright holder should have no control over what other people do with their work, except to the degree that the public generally is better off giving them control over the public in conjunction with the work than the public would be if they did not.
Remember: a copyright is not control over the work. It is control over people.
I should be allowed to record music in my basement and never distribute it, carve a statue that's never seen, or paint a painting and then burn it.
I agree completely. I have no desire to compel artists to do anything at all, and I would be adamantly against any attempt to do so.
However, I also have no desire to let artists compel other people to do or not do things. I am willing to tolerate it if it is in the public interest, but only if it is in the public interest. And then, only to the degree that results in the greatest overall benefit to the public.
Similarily, I should be allowed to play my music at a concert and stipulate that nobody ever records it because I feel that each concert should only be listened to once.
I disagree completely. Copyright is meant to serve the public interest in promoting the progress of knowledge. A large part of this is ensuring that works are not lost. If you create a work and have no desire to preserve a copy of it for posterity, and that work is out there in the public, then not only should you never have the ability to prevent the public from stepping in and doing your job, but we should praise them for it, and condemn you.
If you don't like the DRM on a song, don't buy it.
That's like saying that if I don't like a car that pollutes heavily, that I shouldn't buy it. It is an asinine suggestion. If I don't like the polluting car, I will seek to have a law passed that bans the car altogether.
I don't think that we can ban DRM per se, due to the 1st Amendment, and I don't have a problem with that. OTOH, I do think that we can make the use of DRM so utterly unappealing that, in conjunction with highly appealing alternatives, such as copyright, that we can effectively eliminate it as a real threat to the public interest. If authors have to choose between copyright and DRM, and if they know that it will be legal to break the DRM, legal to make and distribute copies of the DRMed work, and that significant amounts of money and resources are available to crack the DRM, I think they'll abandon DRM of their own free will, opting to use copyright sans DRM instead. And if they don't, DRM will just turn out to be useless. Either way, the public wins.
Well, I don't think that we can ban DRM due to 1st Amendment concerns. But I do think that we can fight it effectively by making DRM and copyright mutually exclusive, and then making copyright far more attractive (while still maximizing the public benefit) than DRM as options to authors and publishers. But it does still require significant changes to the law.
There is a public performance right for some works. You can see it, and the other primary rights, at 17 USC 106. It's not a form of distribution, however; distribution requires that copies (i.e. tangible copies) be distributed. Of course, it is just as capable of being a fair use as anything else. Non-public performances, however, remain outside the purview of copyright, and that was more or less what was being talked about, I think.
You mean "chattels" or "personal property" rather than "real property", right?
Yes. Sorry for the error, I was pretty tired last night.
it may be goods delivered under licence
It could be, but this is pretty uncommon. Software is the only area where there is a real attempt at this sort of thing. While some people -- computer geeks mostly, it seems -- might think that everything is like software, really no one else licenses to the mass market. And EULAs themselves are still a little up in the air.
Culturally, no one cares about sharing music online other than RIAA et al and a small number of self-righteous people with sticks up their asses. I'm a copyright lawyer and I know no end of copyright lawyers, other lawyers, ordinary people, members of Congress, etc. who couldn't give a crap about online filesharing when they, or people they know, engage in it. And really, who have no objection to it generally, either.
The climate hasn't significantly changed. The laws are worse, and the bad guys are pushing their side of things more. That's about it.
I don't see any problem with people making their works *physically* more difficult to copy, as long as they don't try to make it *legally* more difficult.
I disagree. Remember, no one has an inherent right to a copyright. A copyright is granted by the public, via our servant, the government, only when it is in our interest to do so. We can, and traditionally have, granted copyrights only when the claimant satisfies certain conditions. I don't see why one such condition cannot be that they cannot use, authorize, or allow those they authorize to use, DRM with their works.
If they don't like it, they are free to either 1) not create or publish their works, or 2) use DRM and not get a copyright. I think that by making copyrights rewarding, and making the use of DRM unrewarding (by e.g. having the government put significant effort into cracking the DRM on the public domain works that would be using it) we can steer authors et al into doing what we want, even though it is ultimately their choice.
Also, if the copyright term really does expire, that means you can legally download a digital copy.
But unless the DRM is cracked, that copy still won't function.
Why does the copyright need to expire before people can do anything they like with the work?
It's possible you're misunderstanding me slightly due to my wording. I don't mean 'anything' in the sense of 'not nothing,' but instead in the sense of 'everything under the sun.'
When the work enters the public domain, there are no more copyright-related restrictions on the work. I can do literally anything I wish with the work, including simply making and selling copies. It is true, though, that prior to the copyright expiring, that I can do some things with the work. But not absolutely anything; I'm limited then.
You can already burn to CD and reimport into a lossless format
Why should I tolerate such a deliberate pain in the ass? Why is it in my interests to protect people when they try to make my life difficult by throwing obstacles at me? Especially as they may be insurmountable, since not all DRM is implemented like Apple's.
The RIAA never seemed to have a problem with that.
What, are you kidding? They hated home taping. There were campaigns against it, and ultimately they pushed through the AHRA which allowed it, a little bit, but they got a lot of things in return, like SCMS and money.
On legal grounds:
the same rights and freedoms granted to me by the AHRA of 1992, in which these record companies have explicitly exempted private copying using recording devices in exchange for a blank media levy. And NO, you didnt specify "over the internet" or "through use of computers".. the AHRA applies to all else, and does not apply to computers only because of a convenient loophole and some bought judges.
Actually, they didn't exempt it, they made it non-actionable. There is a subtle, but important difference, which comes into play when you consider the precise wording of 17 USC 109.
Also, AHRA is quite narrow with regards to what it applies to, both in terms of works, as well as media and devices. But be glad it doesn't apply to computers, since otherwise computers would be required to implement SCMS, etc. The RIAA went after computers and mp3 players in the Diamond case, and we're all much better off with them having lost, and the courts having decided that computers and peripherals like mp3 players were not covered under AHRA.
the same rights and freedoms involved in me being allowed to tape the same copyrighted music from the radio
That would be AHRA again, or fair use when ARHA is inapplicable. And in some cases, that's just plain illegal. Not all home taping is a fair use, after all, nor is it covered by AHRA.
On idealogical grounds:
the same rights and freedoms involved in me being allowed to measure and build a copy
That one doesn't really jibe with copyright policy generally.
Moral rights are also the biggest bullshit, and are a virtually unknown concept in the US. We don't have moral rights with regard to film, and we are best off not having them at all, since they are a completely bad idea with nothing in their favor.
Copyright law is utilitarian -- except for right now, when it's just corrupt.
Stupid but honest question: if DRM is bad, is the production of music only profitable through DRM also bad?
Yes. Ultimately, we're worse off with DRM and the music than we would be with no DRM and without that music. (It wouldn't be all music, of course: history shows that lots of music will get created, published, recorded, etc. without DRM) This means that the music you're asking about costs more to the public than it is worth to the public. That makes it bad.
It'd be great to have it, sans DRM. But if that won't happen, so be it.
Do people find it unfair that they can't circumvent copyright as easy as they'd like?
Often it is unfair. Literally so: when DRM interferes with a fair use, which by definition is not an infringement of copyright, then what else can we call that, but unfair?
Plus, DRM doesn't conform with the shape of copyright. Copyright expires; DRM does not. Copyright can be changed by legislation; DRM cannot be. Copyright has many exceptions lest it be overbroad and harmful (which is not to say that it isn't already overbroad and harmful); DRM tends to ignore these as implemented.
The DMCA makes it a crime to circumvent "effective means of access control." To me, the key word, there, is effective . As far as I'm concerned, if I can circumvent it, it isn't effective, Q.E.D..
I'm going to take a guess here: you don't really know anything about the law, right?
Not only is that not what it means, but no judge would ever think that your interpretation is correct, for the following reason:
It is a rule of statutory interpretation that Congress never intends to pass a meaningless law. Laws all must do something that wasn't already being done, because there are no useless laws. So only interpretations where there is some use to the law, some real meaning, are valid.
If it is illegal to break access controls that are effective, where effective means that they are unbreakable, then the law is meaningless. No one ever could break it, because it would be impossible to do so by definition. This cannot possibly be what Congress intended. Therefore, effectiveness must mean something else, something that permits a TPM to be broken, yet still be considered 'effective.' Maybe the word doesn't quite match the dictionary definition, but the law frequently uses words in a specialized manner. (Think of how various fields created their own definitions of words like 'computer' or 'broadcast' or 'network' or 'drive' or 'memory.')
What it actually turns out to mean is that it has any material degree of effectiveness against nearly anyone at all. ROT13 is likely not effective, but analogue Macrovision probably would be.
Your argument would get laughed out of court. You're coming across like one of those schmucks who rejects the authority of a court due to trivialities like the flag in the courtroom.
What happens when the copyright expires, as the Constitution demands it ultimately must? Will the DRM magically evaporate? Or will it impair people from doing anything they like with the then-public domain work?
This alone is reason enough to get rid of DRM to the fullest extent we can.
There are other problems with it, though. For example, copyright does not prevent people from conveying lawfully made copies of works. But iTMS DRM interferes with this, since the work is not usable by the second purchaser. Copyright law is meant to serve the public interest. Why should the public tolerate mere authors and publishers interfering in this, twisting and warping matters for their own desires? Why shouldn't the default rules be the only rules, at least in ordinary consumer transactions?
Copyright deals with the big picture, over the long term. You're thinking too small. Think big, and the problems that make DRM inherently unacceptable become plain as day.
Making backups, format-shifting, time-shifting, viewing unlimited times - THOSE are Fair Use.
Viewing is not a fair use. This is because viewing is not part of copyright, and therefore can't be covered under fair use, which is a part of copyright. Viewing is simply part of real property law. The right to watch a movie you own is the exact same right that you have to eat an apple that you own; it's the right of a property owner to do anything with his property that he wants to, if it does not violate the law.
As for backups, and space and time shifting, those are potentially fair uses, depending on the circumstances, but there can just as easily be circumstances where they are not fair uses. And there are plenty more fair uses besides the ones you listed, which are in fact quite novel and unimportant, really.
Copying the majority of a work, modifying it and distributing the derivative work is not Fair Use.
It can be. Parodists do this all the time.
Copying and then transferring copies to others for a fee is clearly not Fair Use.
Again, it can be, it just depends on the circumstances. Anything can be a fair use with the right circumstances. And anything can be unfair, with the wrong circumstances. That's how fair use is.
Frankly, the D.C. did a piss-poor fair use analysis in the CleanFlicks case. Factors 1 and 4 were in their favor, and should've been enough.
Sure, the rights we're talking about are ones that don't make much sense for a one week rental, but while in possession of content that I've rented, am I afforded the same rights that I would have if I owned the DVD/CD/whatever, during the rental period?
No, that's not how it works. You can engage in fair uses all the time, regardless of whether you own a copy, rent a copy, or don't have a copy at all. Fair use is not contingent on ownership. Rather, it's contingent on the circumstances involved. For example, it is entirely possible that if Alice tried to engage in a particular use whilst owning a copy, that it would be unfair, while if Bob tried to engage in the same use, not owning a copy, that it would be fair. Other factors are what's key. Depending on the use in question, ownership might be a relevant factor, but it is not the only one or the most important one.
As a consumer I don't have a problem with the general idea of DRM on a rental - my fair use rights aren't being violated, because I don't have the right to backup, timeshift, or format shift rentals to begin with (unlike media I own, for which any DRM is intolerable).
This is incorrect for two reasons.
First, you forget that someone is the owner of the copy being rented. Remember, with certain quite narrow exceptions, copyright law does not prohibit anyone from renting out a lawfully made copy of a copyrighted work that they own. For example, if you go to Best Buy and purchase a movie on DVD there, copyright law will not bar you from renting that copy as much as you like. 17 USC 109 is the relevant law.
Second, any use by any person may be fair. Whether it is fair or not depends on the circumstances involved. Mere ownership of the copy that is the source of the use is not required. It may be a relevant factor, but that is all. One can trivially imagine likely fair uses involving a rented copy. For example, if you are creating a presentation as a student for a film class, it would likely be a fair use to copy short clips from a rented copy of a film to demonstrate various points in your presentation. I suggest you look at the four elements of the statutory fair use test at 17 USC 107.
In any event, all DRM is intolerable in conjunction with published works.
Aren't artists people served by the same government?
They absolutely are, and I wouldn't have it any other way. The government owes a duty to artists just the same as it does anyone else. I would never tolerate discriminating against artists.
Why are they not equally protected?
You don't understand. Equal protection means that artists would have the same rights as non-artists. Since copyright is a special monopoly -- a privilege, not a right -- then equal treatment would mean not giving artists special treatment. It would mean not favoring artists.
A copyright is a monopoly just like a telephone monopoly or a cable tv monopoly. It is always going to harm society to some extent. However, it may also be beneficial to society to some extent. If a specific copyright law is more beneficial to society than it is harmful to society, then it is in society's best interests to have that law. If a different law would be more beneficial, than that law is the one that should be in force. If no law yields an increased net benefit, than the best option is to not have that law.
Personally, it is my learned opinion that our current copyright laws are either more harmful than beneficial, or at least not as beneficial as alternatives might be. This being the case, I want to change the law to one that is maximally beneficial to society. Whether this happens to reduce the degree of special benefits artists enjoy or not is of no interest to me whatsoever, save for how it might affect the public benefit.
And remember: artists are members of the public too. Artists benefit from a healthy public domain, from broad exceptions to copyright, etc. Not just because they're like everyone else, and enjoy creative works for their own sake, particularly when it's for free or minimal cost, along with the opportunity to copy and distribute those works, but also because as artists they make derivative works. Disney is a good example of an artist that benefited from the public domain. The artists of today can benefit by placing many of Disney's works into the public domain so that they can be drawn upon in their turn. It's a sort of circle of life kind of thing.
Besides which, economic studies indicate that reducing the length and scope of copyright would not adversely affect artists. The vast majority of works simply have no economic value, and so a monopoly on that value is equally worthless. The authors of those works lose nothing with shorter or lesser copyrights. For example, your post to which I am replying. You likely would've written it even if it wasn't copyrighted. So why should I give you a copyright? Why should I try to encourage you (with the reward of a monopoly) to do something you would do anyway? That makes no sense.
Of the tiny handful that have any value, the vast majority of those recover the vast majority of their value almost immediately upon publication. A typical book that is unusual in that it's not an instant flop makes 90% of all the money it will ever make within a few months of hitting the shelves. Republication in a different medium does the same thing: Most movies make most of their box-office money within a few weeks of opening in theaters, most of their pay-per-view money within a few weeks of being put on those channels, and make most of their retail money within a few weeks of the DVD hitting shelves. Adding decades to this ends up yielding a few more percentage points, but that's about it. IIRC, the extra 20 years added by the Sonny Bono Act -- bringing the term from life+50 to life+70, or 75 years to 95 years, depending on which term is applicable -- is worth maybe a nickel on average. I doubt that's much of an incentive to anyone.
Of the small minority of works that make any money at all, only the tiniest percentage continue to make significant amounts of money over a long span of time. It's the people who have those copyrights -- the people who have already made a fortune, and who want to go on making even more of a fortune -- that are copyrig
In fact, copyright law ALLOWS me to make a copy, if making that copy is necessary to the process of making use of the information.
No it doesn't, except in very limited circumstances, which almost never apply.
If there was no dispensation to copy the material to make use of it, copyright would be violated by simply playing the CD or DVD.
Correct. And the dispensation is not in the law. It may be in an implied license, but of course, depending on circumstances, it might not be.
This would be "distributing to myself".
No, it wouldn't be. I encourage you to read 17 USC 106(3) carefully. Then read 106(1) for the actual issue at hand.